High Court of KeralaSingle Judge2015-10-30Petition disposed of with liberty to challenge ...

Aboobacker K. H. v. State of Kerala and Others

Case / Petition Number:WP(C).No. 33020 of 2015 (B)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Bhavadasan
Judgment Date: 2015-10-30
Court Decision / Holding: Disposed of the petition; liberty is reserved to challenge the election after the election under applicable electoral laws.
Final Disposition: Petition disposed of with liberty to challenge post-election

Parties to the Case

Appellants / Petitioners

Aboobacker K. H.

Respondents

State of Kerala represented by its Secretary, Department for Local Self Government Institutions, Secretariat, Thiruvananthapuram
State Election Commission, Kerala, Corporation Office Complex, L.M.S. Junction, Palayam, Thiruvananathapuram 695033
District Election Officer and District Collector, Collectorate, Kasaragod 671 121

Legal Representation & Advocates

Counsels for Petitioners

• R. D. Shenoy (Sr.)
• S. Vinod Bhat
• Legith T. Kotakkal
• M. S. Imthiyaz Ahammed

Counsels for Respondents

• Murlali Purushothaman
• Bobby John

Case Synopsis & Summary

This writ petition challenges Ext. P4, which declares Chengala Ward (Ward No. 14) as a constituency reserved for women for the 2015 local body elections, and seeks to include Uduma Ward (Ward No. 13) as reserved for women. The petitioner contends that rotation rules under the Kerala Panchayath Raj Act require general and reserved wards to alternate based on population data and census figures; therefore Uduma should have been reserved and Chengala general in 2015, as per the rotation scheme. Section 6 of the Kerala Panchayath Raj Act provides the strength and allocation of seats, and the petitioner argues the status of the two wards was not properly rotated. The petition cites Amaravila Krishnan Nair v. Election Commissioner of India (AIR 1972 Kerala 5) to support the notion that pre-election steps, including the settlement of electoral rolls, may be challengeable. The respondents’ counsel counters that once the election notification is issued, the election process commences and may only be challenged via an election petition after the election, under Section 100(1)(d)(iv) of the Panchayath Raj Act. The court held that the notification dated 07.10.2015 marks the start of the election process, and the appropriate remedy is after the election; accordingly, the petition is disposed of with liberty to challenge post-election. The decision reflects deference to procedural sequencing in electoral matters while preserving post-election remedies.

Provisions of Law Cited

Kerala Panchayath Raj Act, Section 6Panchayat Raj Act, Section 100(1)(d)(iv)Constitution of India, Article 226

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that rotation of general and reserved wards in Kasaragod District should reflect the rotation pattern from 2010, so Uduma (Ward 13) should have been reserved and Chengala (Ward 14) general in 2015. They contend that Ext. P4 improperly fixes Chengala as a women-reserved ward and seeks mandamus to alter Uduma’s status to reserved. They rely on Section 6 of the Kerala Panchayath Raj Act to support a rotation-based reallocation of seats and reference Amaravila Krishnan Nair v. Election Commissioner (AIR 1972 Kerala 5) to emphasize the pre-election nature of electoral-roll settlements that may be challenged under Article 226. They argue that the Election process had not yet crystallized into finality, warranting a pre-election challenge; however, they also acknowledge possible post-election remedies under Section 100(1)(d)(iv).

Contentions of Respondents

Respondents argue that post-notification challenges fall within the election process and are properly addressed via an election petition after the election, not by a writ under Article 226. They distinguish Amaravila Krishnan Nair, noting it dealt with pre-notification steps; here, the election notification of 07.10.2015 started the process, leaving no room for immediate writ relief. They contend that Ext. P4 reflects the ongoing electoral plan and that the correct remedy for any grievance is post-election challenge, under the residuary provision of the Panchayath Raj Act.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Amaravila Krishnan Nair v. The Election Commissioner of India, New Delhi and Others	AIR 1972 Kerala 5	Distinguished	The court distinguishes this pre-notification case from the present post-notification situation, noting that Amaravila Krishnan Nair dealt with pre-election steps and could be challenged before notification.

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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.BHAVADASAN** **FRIDAY, THE 30TH DAY OF OCTOBER 2015/8TH KARTHIKA, 1937** ## **WP(C).No. 33020 of 2015 (B)** **----------------------------** **PETITIONER(S): --------------------------** **ABOOBACKER K.H. AGED 36 YEARS, SON OF HUSSAIN, KATTAKAL HOUSE, KALLANADU P.O., KASARAGOD.** **BY ADVS.SRI.R.D.SHENOY (SR.) SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL SRI.M.S.IMTHIYAZ AHAMMED** **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT FOR LOCAL SELF GOVERNMENT INSTITUTIONS, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. STATE ELECTION COMMISSION, KERALA, CORPORATION OFFICE COMPLEX, L.M.S. JUNCTION, PALAYAM, THIRUVANATHAPURAM 695033.** **3. DISTRICT ELECTION OFFICER AND DISTRICT COLLECTOR, COLLECTORATE, KASARAGOD 671 121.** - **R2 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM BY GOVERNMENT PLEADER SRI. BOBBY JOHN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ds** ## **WP(C).No. 33020 of 2015 (B)** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXT.P1: COPY OF THE ORDER NO. 1003/2015 S.D.C. DATED 30.09.2015 EXT.P2: COPY OF THE LIST OF CANDIDATES CONTESTING FROM UDUMA WARD FOR THE ELECTIONS IN 2010. EXT.P3: COPY OF THE LIST OF CANDIDATES CONTESTING FROM CHENGALA WARD FOR THE ELECTIONS IN 2010. EXT.P4: COPY OF THE ORDER NO.E2-51720/15 DATED 4.10.2015 OF THE 3RD RESPONDENT.** ## **RESPONDENTS EXHIBITS: NIL** //True copy// P.A. to Judge **ds** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - ## W.P.(C) No. 33020 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th ] day of October, 2015 ## **J U D G M E N T** In this writ petition, the following reliefs are sought for: “i. To issue a writ of certiorari or such other writ quashing Ext.P4 order inasmuch as it declares Chengala Ward as a constituency reserved for women; ii) To issue a writ of mandamus or such other writ directing the respondents to include in Ext.P4 Uduma Ward (no.13) in Kasargod District Panchayat as a reserved ward for women.” 2. The facts absolutely necessary for the disposal of this petition are as follows: The petitioner pointed out that he is much aggrieved by the continuance of two constituencies i.e. Uduma and Chengala as general and reserved constituencies respectively for the ensuing local body election to be held in 2015. The grievance is that they continued to occupy the ## **W.P.(C) No. 33020 of 2015** **-2-** same status as they did it in the previous election i.e. in 2010. Uduma and Chengala are the two constituencies out of the 17 in Kasargod District. Uduma is in Ward No.13 and Chengala is in Ward No.14. In the election held in 2010, Ward No.13 (Uduma) was a general ward and Ward No.14 (Chengala) was a reserved ward for women in the local body election of that year. 3. The petitioner draws the attention of this Court to Section 6 of the Kerala Panchayath Raj Act which reads as follows: “ **6. Strength of Panchayats** .-- (1) The total number of seats in a Village Panchayat, a Block Panchayat and a District Panchayat to be filled by direct election shall be notified by the Government in accordance with the scale specified in sub-section (3) with reference to the population of the territorial area of the Panchayat concerned. (2) The Government may after, publication of the relevant figures of each census, by notification alter the total number of seats in a Panchayat notified under sub- **-3-** ## **W.P.(C) No. 33020 of 2015** section (1) subject to the scale specified in sub-section (3). (3) The number of seats to be notified under sub-section (1) or sub-section (2) shall not,(a) in these case of Village Panchayat, be less than thirteen or more than twenty three; (b) in these case of a Block Panchayat, be less than thirteen or more than twenty three; (c) in these case of a District Panchayat, be less than sixteen or more than thirty-two; Provided that the ratio between the population of the territorial area of a panchayat at any level and the number of seats in such Panchayats to be filled by election shall, so far as practicable, be the same throughout State. (4) The procedure of fixing the strength of a Panchayat shall be such as may be prescribed.” 4. It is therefore contended that if applying the rules of rotation, the position should have been that Uduma ought to have been a reserved ward and Chengala ought to have been a general ward in view of the above rule. 5. A doubt was entertained by this Court regarding the maintainability of the petition. The learned counsel then ## **W.P.(C) No. 33020 of 2015** **-4-** relied on the decisions reported in **Amaravila Krishnan Nair v. The Election Commissioner of India, New Delhiand Others** (AIR 1972 Kerala 5), wherein, it was held that a settlement of an electoral roll being a pre-election step could be challenged if it violates any of the rules or regulations. It does not form a part of the election process at all. Relying on that principles, it is contended that the present nomination of the constituencies as general and reserved can be challenged. 6. The learned counsel appearing for the 2[nd] respondent pointed out that possibly the contention could stand had it been before the notification for election. Once the notification of election is issued, the process of election begins and then only remedy available to the petitioner is to challenge the election of the candidate concerned after the election is conducted by an election petition as per the grounds available for challenging an election. 7. It is true that in the decision cited by the learned ## **W.P.(C) No. 33020 of 2015** **-5-** counsel for the petitioner, it has been stated that settling of electoral roll is a pre-election process and a challenge under Article 226 of the Constitution of the India to the election process may be possible. But, it has to be noticed that the challenge involved in that case was much prior to the notification of election had been published. So that it could not be said that the time when the challenge was made, the election process had commenced. 8. In the case on hand, the election notification was issued on 07.10.2015. That means, with the issuance of election notification, the election process has started. If that be so, any tampering with the electoral rolls will form a part of the election process also. It is not as if the petitioner has no remedy in case his contention is to be upheld at a later stage. This is clear from Section 100 (1) (d) (iv) of the Panchayat Raj Act. It is clear from a reading of the above provision that it is a residuary clause encompassing all ills regarding an election. There is **-6-** ## **W.P.(C) No. 33020 of 2015** no reason as to why the claim now made by the petitioner cannot fall under that provision. If that be so, the remedy of the petitioner is to challenge the election after the election process is completed. Reserving the liberty of the petitioner to challenge the election on the ground now urged by him after the election, this petition is disposed of. Sd/- **P.BHAVADASAN JUDGE** ds //True copy// P.A. to Judge