Bindu Alex v. Returning Officer, Aluva Municipality; Kerala State Election Commission; Aluva Municipality; K.V. Sarala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA, 1942** ## **WP(C).No.26192 OF 2020(Y)** ## **PETITIONER:** **BINDU ALEX AGED 49 YEARS** **W/O.ALEX JOSEPH, WARD NO.10/145, PADAMATTUMMAL HOUSE, TASS ROAD, ALUVA - 683 018.** **BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.RAJESH VIJAYENDRAN SMT.ACHU SUBHA ABRAHAM SMT.V.T.LITHA SMT.K.R.MONISHA SMT.SHRUTHI SARA JACOB** ## **RESPONDENTS:** - **1 THE RETURNING OFFICER, ALUVA MUNICIPALITY, OFFICE OF THE RETURNING OFFICER, CIVIL STATION, ALUVA - 683 101.** - **2 THE KERALA STATE ELECTION COMMISSION REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM - 695 033.** - **3 ALUVA MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, ALUVA - 683 101.** - **4 K.V.SARALA AGED 65 YEARS D/O.VISHWABHARAN NAIR, KUNDALA VEEDU, MANAPPURAM ROAD, THOTTAKATTUKARA P.O., ALUVA - 683 103.** **BY ADVS. SRI.MURALI PURUSHOTHAMAN FOR R2 SRI.K.T.THOMAS FOR R3 SRI.C.M.NAZAR,SPL.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.26192 OF 2020(Y) 2 ## **W.P.(C) No.26192 of 2020** ## **-----------------------------------------------** ## **J U D G M E N T** The fourth respondent has submitted nomination for the election to Aluva Municipality from Ward No.8. The petitioner also submitted nomination for the election to the Municipality from the very same ward. At the time of scrutiny of the nominations, the petitioner raised objections to the acceptance of the nomination of the fourth respondent on the ground that she is disqualified from contesting the election under Section 90(1)(j) of the Kerala Municipality Act as she is a defaulter to the third respondent. The objection raised by the petitioner was overruled and the nomination of the fourth respondent was accepted. The petitioner challenges the said decision of the Returning Officer in this proceedings filed under Article 226 of the Constitution. 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 WP(C).No.26192 OF 2020(Y) 3 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; (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 WP(C).No.26192 OF 2020(Y) 4 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: "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], WP(C).No.26192 OF 2020(Y) 5 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 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 WP(C).No.26192 OF 2020(Y) 6 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 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 of the decision of the Returning Officer as to the disqualification of the fourth respondent to contest the election cannot be decided by this court 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** Mn **JUDGE** WP(C).No.26192 OF 2020(Y) 7 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF REPRESENTATION DATED 06/02/2012 SUBMITTED BY SREEKRISHNA SWAMY KSHETRA UPADESKA SAMITHY TO THE 3RD RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF ORDER DATED 10/02/2012 IN DBP NO.29 OF 2009 PASSED BY THE HON'BLE HIGH COURT OF KERALA.** - **EXHIBIT P3 TRUE COPY OF UNDERTAKING DATED 17/02/2012 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF DEMAND NOTICE NO.E1-7932/11 DATED 02/03/2012 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF DEMAND NOTICE NO.E1-7932/11 DATED 23/03/2012 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF DEMAND NOTICE NO.E1-7932/11 DATED 25/03/2012 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 05/03/2015 IN W.P(C) NO.14306/2012 PASSED BY THE HON'BLE HIGH COURT OF KERALA.** - **EXHIBIT P8 TRUE COPY OF JUDGMENT DATED 14/12/2015 IN W.P.(C) NO.9959/2014 OF THE HON'BLE HIGH COURT OF KERALA.** - **EXHIBIT P9 TRUE COPY OF JUDGMENT DATED 17/11/2020 IN W.A.NO.294/2016 PASSED BY THE HON'BLE HIGH COURT OF KERALA.** - **EXHIBIT P10 TRUE COPY OF OBJECTION SUBMITTED BY THE PETITIONER DATED 20/11/2020 BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF LETTER NO.A4-01/R.O./ELCL/2020 DATED 20/11/2020 SUBMITTED BY THE 1ST RESPONDENT TO 2ND RESPONDENT.** WP(C).No.26192 OF 2020(Y) 8 |**EXHIBIT P12**|**TRUE COPY OF LETTER NO.B4-30382/2020 SEC**| |---|---| ||**DATED 21/11/2020 ISSUED BY THE 2ND**| ||**RESPONDENT TO 1ST RESPONDENT.**| |**EXHIBIT P13**|**TRUE COPY OF LETTER G3-1574/20 DATED**| ||**05/10/2020 ISSUED BY THE 3RD RESPONDENT TO**| ||**THE 4TH RESPONDENT.**| |**EXHIBIT P14**|**TRUE COPY OF INFORMATION RECEIVED FROM 3RD**| ||**RESPONDENT IN RESPECT OF THE SAME UNDER THE**| ||**RIGHT TO INFORMATION ACT DATED 09/10/2020.**| |//TRUE COPY//|| |PA TO JUDGE||