C. P. Dileep Nair v. Chief Election Commissioner of India, Thrikkakara Bye-election and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944 WP(C) NO. 16723 OF 2022 ``` ## **`PETITIONER`** ``` C. P. DILEEP NAIR AGED 54 YEARS S/O. K. N. PRABAKARAN NAIR, R/AT : 8- B, GOKULAM AMRIT RETREAT, VIVEK NAGAR, KADAVANTHRA, KOCHI - 682 020. ``` ``` BY ADVS. BIJU ANTONY ALOOR K.P.PRASANTH ARCHANA SURESH T.S.KRISHNENDU VISHNU DILEEP MOHAMED AMEER M. ``` ## **`RESPONDENTS:`** - **`1 THE CHIEF ELECTION COMMISSION OF INDIA NIRVACHAN SADAN, ASHOKA ROAD, NEW DELHI - 110 001.`** - **`2 THE RETURNING OFFICER & ASSISTANT DIRECTOR OF PANCHAYAT 83, THRIKKAKARA L A CONSTITUENCY , CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT, PIN - 682 030.`** - **`3 THE DISTRICT COLLECTOR COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT, PIN - 682 030.`** - **`4 SMT. UMA THOMAS (UDF CANDIDATE), W/O. LATE P. T. THOMAS, R/AT - 44/1362, PUTHIYAPARAMBIL HOUSE, VYLASSERY ROAD, PALARIVATTOM P. O., KOCHI - 682 025.`** - **`BY ADV SHRI.DEEPU LAL MOHAN, SC, ELECTION COMMISSION OF INDIA`** ## **`SRI.APPU P S, GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.16723 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 24[th] day of May, 2022 The petitioner, who is one of the candidates in the byelection scheduled to the Legislative Assembly Constituency of Thrikkakara (83) in Kerala, is before this Court seeking to quash Ext.P2 and to direct the 1[st] respondent to pass orders on Ext.P3. The petitioner has a further prayer to command respondents 1 and 2 to reset the ballot in the alphabetic order of the names of the candidates. The petitioner further seeks to declare that the nomination of the 4[th] respondent is liable to be rejected in view of the grounds urged by the petitioner in Exts.P1 and P3 complaints. 2. The petitioner has submitted a detailed objection regarding the acceptance of the nomination of the 4[th] respondent. According to the petitioner, the 4[th] respondent has inherited an outstanding bank loan taken by late Sri.P.T.Thomas from HDFC Bank and SBI Bank. The ``` WP(C) NO.16723 OF 2022 ``` ``` 3 ``` petitioner would further argue that the land tax in respect of the land in Division 44/1362 of Corporation of Kochi has not been cleared by the 4[th] respondent. In view of Section 75 A of the Representation of People Act, 1950 (hereinafter referred to as ‘the Act, 1950’), the 4[th] respondent is disqualified from contesting the election. However, the 2[nd] respondent without going into the complaint in detail, rejected the complaint filed by the petitioner. The petitioner thereupon, filed Ext.P3 before the 1[st] respondent. Ext.P3 has also not been considered. 3. The learned counsel for the petitioner argued that all assets and liabilities in respect of the deceased husband of the 4[th] respondent shall devolve as the assets and liabilities of the 4[th] respondent. Therefore, when there is outstanding liability due to the Bank and when land tax due to the Government has not been paid, the respondents ought to have rejected the nomination of the 4[th] respondent, in view of Section 75 A of the Act, 1950. The learned counsel for the ``` WP(C) NO.16723 OF 2022 ``` ``` 4 ``` petitioner further argued that the 4[th] respondent’s name has been given on overriding importance in the ballot, ignoring the alphabetical order and the 4[th] respondent has been placed at serial No. 1. This is intended to give undue advantage to the 4[th] respondent. The complaint was filed by the petitioner as early on 12.05.2022. The petitioner was not given an opportunity to produce supporting documents. In the circumstances, this Court is duty bound to invoke the extraordinary jurisdiction and direct the 1[st] respondent to take a decision on the complaint filed by the petitioner after considering the legal arguments urged by the petitioner, contended the learned counsel for the petitioner. 4. Respondents 1 and 2 entered appearance and contested the writ petition. Respondents 1 and 2 submitted that improper acceptance of notification is a ground for declaring the election of returned candidates to be void under Section 100(1)(b)(i) of the Representation of the People Act, 1951, in ``` WP(C) NO.16723 OF 2022 ``` ``` 5 ``` an Election Petition. Once a nomination paper of a candidate is accepted, the only remedy available to the aggrieved person is Election Petition. The Hon’ble Apex Court has held that once the election process is started by publishing a notification, the High Court shall not interfere in the matter invoking Article 226 of the Constitution of India, if such orders will amount to interference with the free flow of the scheduled elections. 5. I have heard the learned counsel for the petitioner and the learned Standing Counsel appearing for respondents 1 and 2. I have also heard the learned Government Pleader representing the 3[rd] respondent. 6. It is a settled proposition of law that when an election notification is published by the Election Commission, the High Courts shall not exercise the jurisdiction under Article 226 of the Constitution of India, if such exercise of power will hinder free flow of election. In the judgment in _**Manda Jaganath v. K.S.Rathnam and Others [(2004) 7 SCC 492],**_ the Hon’ble ``` WP(C) NO.16723 OF 2022 ``` ``` 6 ``` Apex Court has held that only those actions of the Returning Officer which have the effect of interfering in the free flow of scheduled elections or hinder the progress of election are amenable to correction in the writ jurisdiction of the High Court. Such errors should have the effect of interfering in the free flow of the scheduled election. If by an erroneous order conduct of election is not hindered, then the courts under Article 226 of the Constitution should not interfere with the orders of the Returning Officers. 7. It is also to be noted that improper acceptance of nomination is a ground for declaring the election of returned candidate void, under Section 100(1)(d)(i) of the Representation of the People Act, 1951 in an Election Petition. Once the nomination paper of a candidate is accepted, the persons aggrieved have only one remedy that is to resort to Election Petition to be presented after the election is over. ``` WP(C) NO.16723 OF 2022 ``` ``` 7 ``` In view of the above, this Court cannot interfere with the orders passed by the respondents, at this stage. The writ petition fails and it is consequently dismissed. sd/- **N.NAGARESH JUDGE** hmh ``` WP(C) NO.16723 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 16723/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 ``` ``` Exhibit P2 ``` ``` Exhibit P3 ``` ``` RESPONDENT’S EXHIBTIS ANNEXURE R1(A) ``` ``` TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER DATED 12.05.2022 BEFORE THE 2ND RESPONDENT. ``` ``` TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT. ``` ``` TRUE COPY OF THE PETITION PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 16.05.2022. ``` ``` THE PHOTOCOPY OF THE LIST OF CONTESTING CANDIDATES IN THE BYE-ELECTION TO 083- THRIKKAKARA LEGISLATIVE ASSEMBLY CONSTITUENCY PUBLISHED IN THE KERALA GAZETTE AS NOTIFICATION NO.EL3/99/2021/ELEC DATED 16.05.2022 ```