Chithra K.V v. Kerala State Election Commission and others

W.P.(C).No.4558/21 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **MONDAY, THE 22[ND] DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, 1943** ## **WP(C) NO. 4558 OF 2021** ## **PETITIONER:** CHITHRA K.V AGED 31 YEARS W/O.RATHESSH, MEMBER, WARD NO.8, KURUVA GRAMA PANCHAYATH, MALAPPURAM DISTRICT, RESIDING AT ATHIPARAMBATH HOUSE, PANG P.O., KURUVA, MALAPPURAM-679 338. BY ADV R.KRISHNAKUMAR (CHERTHALA) ## **RESPONDENTS:** 1 KERALA STATE ELECTION COMMISSION REPRESENTED BY ITS SECRETARY, OFFICE OF KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM-695 033. 2 RETURNING OFFICER, KURUVA GRAMA PANCHAYATH/ASSITANT REGISTRAR (GENERAL), PERINTHALMANNA, MALAPPURAM DISTRICT-679 322. 3 SECRETARY, KURUVA GRAMA PANCHAYATH, MALAPPURAM DISTRICT-676 504. 4 NAZEERAMOL.P., MEMBER WARD NO.11, KURUV GRAMA PANCHAYATH, MALAPPURAM DISTRICT-679 504, RESIDING AT PALAPRA HOUSE, PANG SOUTH, MALAPPURAM-679338. W.P.(C).No.4558/21 2 5 MUHAMMED MUSTHAFA, MEMBER, WARD NO.11, KURUVA GRAMA PANCHAYATH, MALAPPURAM DISTRICT-676 504, RESIDING AT KOORI HOUSE, KOOTTILANGADI POST, KURUVA, MALAPPURAM676506. 6 JINOSH.P., MEMBER, WARD NO.5, KURUVA GRAMA PANCHAYATH, MALAPPURAM DISTRICT-676 504, RESIDING AT PULLIYIL HOUSE, CHULLITHODU, VATTALLOOR POST, MALAPPURAM676 507. 7 ABOOTHAHIR, MEMBER, WARD NO.19, KURUVA GRAMA PANCHAYATH, MALAPPURAM DISTRICT-676 504, RESIDING AT MADATHIL HOUSE, VATTALLOOR, MELKULAMBU, MALAPPURAM-676 507. 8 ABOOBACKER.U. MEMBER, WARD NO.2, KURUVA GRAMA PANCHAYATH, MALAPPURAM DISTRICT-676 504, RESIDING AT UPPADAN HOUSE, KURUVA, KOOTTILANGADI POST, MALAPPURAM-676 506. 9 SHIHABUDEEN.B. MEMBER, WARD NO.12, KURUVA GRAMA PANCHAYATH, MALAPPURAM DISTRICT-676 504, RESIDING AT PUZHITHURA HOUSE, VAZHENGAL HOUSE, PANG SOUTH, MALAPPURAM-679 338. 10 JAMEELA.K., MEMBER, WARD NO.14, KURUVA GRAMA PANCHAYATH, MALAPPURAM DISTRICT-676 504, RESIDING AT KOTTAKKARAN HOUSE, PANG WEST, PANGCHENDI POST, MALAPPURAM-679 338. 11 SAFIYA MULLAPALLY, MEMBER, WARD NO.22, KURUVA GRAMA PANCHAYATH, MALAPPURAM DISTRICT-676 504, RESIDING AT MULLAPPALLY HOUSE, MEENARKUZHI, PAZHAMALLUR POST, MALAPPURAM-676 506. W.P.(C).No.4558/21 3 12 SAIFUDEEN, MEMBER, WARD NO.7, KURUVA GRAMA PANCHAYATH, MALAPPURAM DISTRICT-676 504, RESIDING AT PARAMBAN HOUSE, CHULLITHODU, VATTALLOOR POST, MALAPPURAM676 507. 13 YASAR ARAFATH, MEMBER, WARD NO.20, KURUVA GRAMA PANCHAYATH, MALAPPURAM DISTRICT-676 504, RESIDING AT POOVANTHODI HOUSE, PAZHAMALLOOR POST, MALAPPURAM - 676 506. 14 SAHEERA, MEMBER, WARD NO.21, KURUVA GRAMA PANCHAYATH, MALAPPURAM DISTRICT-676 504, RESIDING AT PAZHAYIDATH HOUSE, PAZHAMALLOOR POST, MALAPPURAM676 506. BY ADVS. KODOTH SREEDHARAN SRI.K.T.SIDHIQ SRI.P.A.MOHAMMED SHAH SRI.C.R.SYAMKUMAR SHRI.MUNAS K.P shri.MUHAMMED JANAISE V. SHRI.ASWIN KUMAR M J SMT.HELEN P.A. SHRI.ARUN ROY SRI.SHAHIR SHOWKATH ALI SHRI.MOHAMED MUSTHAFA A.K. SHRI.DEEPU LAL MOHAN, SC, STATE ELECTION COMMISSION, KERALA ## **OTHER PRESENT:** RIYAL DEVASSY-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 5.11.2021, THE COURT ON 22.11.2021 DELIVERED THE FOLLOWING: W.P.(C).No.4558/21 4 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** **W.P.(c).No.4558 of 2021 = = = = = = = = = = = = = = = = Dated this the 22[nd] day of November, 2021** ## **JUDGMENT** 1. This writ petition is filed challenging Exhibit P4 order of the 1[st] respondent. The learned counsel for the petitioner submits that the petitioner and respondents 4 to 14 are elected members of Kuruva Grama Panchayat in the election held during December, 2020. Out of 22 members, 11 belong to LDF and 11 belong to UDF. On 11-01-2021, election to the seat reserved for women in the Development Standing Committee of the Panchayat was held. Two candidates, the petitioner and the 11[th] respondent contested. The 2[nd] respondent was the Returning Officer. The Rule provides for marking of as many priorities as there are candidates as may be elected. It is submitted that the LDF members cast their first preference vote in favour of the petitioner and they did not mark second preference vote. The 8[th] respondent UDF member also cast his first preference vote in favour of 11[th] respondent. All other UDF members cast their first, second, third, fourth and fifth W.P.(C).No.4558/21 5 preference votes in favour of the 11[th] respondent. The 2[nd] respondent found that votes cast by respondents 4 to 7 and 9 to 14 were invalid relying on sub-rule (4) of Rule 8 of the Kerala Panchayat Raj (Standing Committee) Rules, 2000 (hereinafter referred to as the Rules) and since the petitioner got 11 first preference votes and the 11[th] respondent got only one preference vote, petitioner was declared as elected. Respondents 4 to 14 challenged the order of the 2[nd] respondent before the 1[st] respondent and he passed Ext.P4 order dated 16-02-2021 finding that the act of the 2[nd] respondent invalidating the votes of respondents 4 to 7 and 9 to 14 was unjustifiable and directed the 2[nd] respondent to convene a meeting of members within ten days from the date of the order and count the votes obtained by the petitioner and the 11[th] respondent again, treating the votes cast by the respondents 4 & 6 to 14 as valid votes and declare the result following the procedure laid down in Rule 8 of the Rules. 2. The learned counsel for the petitioner submits that a mere perusal of Rule would show that there is power in the W.P.(C).No.4558/21 6 returning officer to reject ballot papers. Misinterpreting subrule (4) of Rule 8 of the Rules, the 1[st] respondent has held that the votes cast by respondents 4 to 14 were valid. It is further submitted that the 1[st] respondent had no jurisdiction to consider the complaint of respondents 4 to 14 and that the impugned order was rendered without jurisdiction. - 3.The learned counsel for the petitioner relies on decision of this Court in **Beena v. Kerala State Election Commission** [2012 - (1) KLT 721] and the judgment of this Court in **Latha Kumaran and another v. The Returning Officer, Annamanada and others** [In W.P.(C).No.35121/2010 dated 22/11/2014] and **O.E.Abbas and another v. Director of Panchayats and others** [in W.P.(C).No. 29729/2018 dated 4/10/2018]. - 4.A statement has been placed on record by the 1[st] respondent. It is contended therein as follows:- - “3. In the election the members can cast their 1[st] and 2[nd] preference - votes since there were only two candidates namely writ petitioner Chitra of LDF and Safiya Mullappally, 11[th] respondent of the UDF. The W.P.(C).No.4558/21 7 members supporting the writ petitioner cast 11 first preference in her favour, and they did not mark second preference. The supporters of the 11[th] respondent cast their 1[st] to 5[th] preference votes in favour of 11[th] respondent. The 8[th] respondent from the UDF group also had cast a first preference vote to the 11[th] respondent Safiya Mullappally. The returning officer the 2[nd] respondent erroneously assumed that the votes cast by respondents 4 to 7 and 9 to 14 are invalid in view of Rule 8(4) of the Kerala Panchyat Raj Standing Committee Rules 2000. Since there cannot be invalidation of the votes except on the grounds stated under Rule 8(4); the Election Commission after treating the votes as valid directed counting again and declaration by the Returning Officer strictly in accordance with Rule 8 of the Kerala Panchyath Raj Standing Committee Rules 2000. 4. It is submitted that Sub rule (4) of rule 8 of the Kerala Panchayat Raj (Standing Committee) Rules provides the circumstances under which rejection of ballot paper can be done by the Returning Officer. It reads as follows:- “(4) A ballot paper on which vote has been marked for none of the candidates or on which vote has been marked giving same priority to more than one candidate or the reverse of which does not bear the name and signature of the member who voted, shall be rejected and rejected ballot papers shall be kept in separate cover.” 5. The Returning Officer ignored the statuary provisions for rejection of ballot paper under rule 8 sub rule (4) of the Rules and imported new grounds for rejection of ballot papers. Marking more than one priority to one and the same candidate will not invalidate W.P.(C).No.4558/21 8 the vote. The 11 members out of 22 of the Kuruva Grama Panchayat, who are aggrieved by the decision of the Returning Officer, submitted a petition before the Commission reporting violation of the provisions regarding the election to the Standing Committee and Guidelines regarding the election to Standing Committee members issued by the Commission. 6. Upon receipt of the petition the Commission issued notices to all concerned including Returning Officer, Secretary, Kuruva Grama Panchayat and after recording the statements, including that of the Writ Petitioner and hearing them it was found that Returning Officer did not follow the statutory provisions and the Guidelines issued by the Commission in the matter. The rejection of ballot paper of 10 members was without any basis and violative of sub rule (4) of rule 8. Marking more than one priority to one and the same candidate is not a ground to declare the votes as invalid under sub rule (4) of the rule 8.“ 5.It is submitted that the returning officer misconstrued the provisions of Rule 8(4) and that affected the result of the election. It is further submitted that there is no forum in the Act or Rules to decide the disputes regarding election to Standing Committees and therefore the Election Commission has the power to decide the same. The decisions of the Apex Court in **Mohinder Singh Gill and Another v. The Chief Election Commissioner** [1973 AIR 851], **Kishan Singh** 9 ## W.P.(C).No.4558/21 **Tomar v. Municipal Corporation of the City of Ahmadabad** (Appeal (civil) 5756/2005) and of this Court in **O.E.Abbas v. Director of Panchayats** (Manu/KE/2310/2018) are relied on. - 6.Respondents 4 to 14 have also placed a counter affidavit on record. It is submitted that Rule 8(4) of the Kerala Panchayat Raj (Standing Committee) Rules, 2000 prescribes the principles and procedure regarding rejection of a ballot paper and specifically stipulates the defects on which ballot papers can be rejected. It is contended that since the respondents had clearly indicated their first preference in favour of the opposing candidate, that is, Safiya Mullapally, the intention was amply clear and therefore there is no infirmity in the order of the 1[st] respondent. - 7.I have considered the contentions advanced. In view of the admitted facts which emerge in this case, I am of the opinion that that the question with regard to the power of the 1[st] respondent to consider a challenge to rejection of ballot W.P.(C).No.4558/21 10 papers is not required to be considered in this writ petition. The said question is left open to be considered in appropriate proceedings. 8.In the facts of this case, I find that the procedure for conduct of the election to the standing committee are clearly provided for in Rule 8 of the Kerala Panchayat Raj (Standing Committee) Rules, 2000, which reads as follows:- “ **8.Manner of recording votes, counting of votes and declaration of result in elections** -(1) The returning officer of the meeting shall issue a ballot paper in Form No.1 appended to these rules to every elected member of a Panchayat who wishes to vote in the election to a Standing Committee and the ballot paper shall contain the names of all the contesting candidates. (2) Each member shall, immediately on receipt of the ballot paper, proceed to the place set apart for voting and record the vote by writing legibly on the ballot paper the priority given by him in the order of One, two, three and so on against the names of such number of candidates as may be elected, and after putting his signature and writing his name on the reverse of the ballot paper, fold the ballot paper and put it into the ballot box kept at a place fully visible to the [returning officer]. (3) The [returning officer] shall, on completion of the voting, open the ballot box in the presence of the members take out the ballot papers and count the priority votes obtained by each candidate. W.P.(C).No.4558/21 11 (4) A ballot paper on which vote has been marked for none of the candidates or on which vote has been marked giving same priority to more than one candidate or the reverse of which does not bear the name and signature of the member who voted, shall be rejected and the rejected ballot papers shall be kept in separate cover. (5) Result of the election shall be declared in accordance with the following procedure, namely: (a) On counting the votes, the candidates, equal in number to that of vacant seats, securing the highest number of first priority votes shall be declared elected; (b) On counting the votes under clause (a), when the first priority, votes recorded to two or more candidates are equal and one or more members from among them have to be elected, the second priority votes recorded shall be added to the first priority votes secured by the respective candidates and the candidate or candidates who have secured the highest number of such votes shall be declared elected; (c)On counting the votes under clause (b), when the total priority votes are equal for two or more candidates and one or more members are to be elected from among them the third priority votes recorded shall, be added to the first and second priority votes secured by the respective candidates and the candidate or candidates securing highest number of such votes shall be declared elected: (d) On counting the votes under Clause (c), when the total priority votes are equal for two or more candidates and one or more members are to be elected from among them, the counting of vote W.P.(C).No.4558/21 12 shall be conducted as given under the foregoing clauses and such counting shall be continued till members to all the vacant seats are elected; (e) On counting the votes under Clause (d), if the total votes to more than one candidate comes to be equal while only one seat remains vacant, lot shall be drawn in the meeting for filling up of that post and the person whose name is drawn first from among the said candidates shall be declared elected. **Note:** While counting priority votes under the above sub-rule, total votes secured by a candidate shall be calculated in the order that the number of first priority votes secured as zero if no first priority vote has been secured and the number of second priority votes secured as zero, if no second priority vote has been secured by the candidate and so on.” 9.It is, therefore, amply clear that it is only in the three circumstances specifically mentioned in sub-rule (4) that a ballot paper can be rejected. In the instant case, it is the common case of the parties that the party respondents had marked their 1[st] , 2[nd] , 3[rd] , 4[th] and 5[th] preferences in favour of the opposing candidate. Therefore, since there were only two candidates in the election and the first preference being unequivocally marked in favour of the opposing candidate, the conclusion reached by the 1[st] respondent cannot be held to be perverse or unreasonable. W.P.(C).No.4558/21 13 10.In the above factual situation, I am of the opinion that even if the order of the Kerala State Election Commission is lacking in jurisdiction, no other conclusion could have been reached even by this Court which, admittedly, has the jurisdiction to consider the issue. ## 11.The Apex Court in **Chandra Singh and others v. State of Rajasthan and another** [(2003) 6 SCC 545] has held as follows:- “Issuance of a writ of certiorari is a discretionary remedy. [See Champalal Binani vs. CIT, West Bengal, AIR 1970 SC 645]. The High Court and consequently this Court while exercising their extraordinary jurisdiction under Articles 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant. Furthermore, this Court exercised its discretionary jurisdiction under Article 136 of the Constitution of India which need not be exercised in a case where the impugned judgment is found to be erroneous if by reason thereof substantial justice is being done. [See S.D.S. Shipping (P) Ltd. vs. Jay Container Services Co.(P) Ltd. & Ors. [2003 (4) Supreme 44]. Such a relief can be denied, inter alia, when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal one.“ W.P.(C).No.4558/21 14 12. In the above view of the matter, I am of the opinion that it is unnecessary to consider the question of jurisdiction, since the same order would have been passed by this Court even if the challenge were directly before this Court. The effect of setting aside the order challenged, therefore, would be the revival of an illegal proceedings. In the factual situation, I am of the opinion that the writ petition is not liable to succeed. The writ petition fails and the same is, accordingly, dismissed. sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.4558/21 15 ## **APPENDIX OF WP(C) 4558/2021** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE COMMUNICATION BEARING NO.A1-957/2020-21 DATED 17.02.2021 ISSUED BY THE 3RD RESPONDENT UNDER RTI ACT TO ONE JASIR KOTTAMPARA. EXHIBIT P2 A TRUE COPY OF THE PETITION SUBMITTED BY THE RESPONDENTS NO.4 TO 14 BEFORE THE 1ST RESPONDENT DATED 11.01.2021. EXHIBIT P3 A TRUE COPY OF THE NOTICE NO.SEC/180/2021-A5 DATED 05.02.2021 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 16.02.2021 IN FILE NO.A5-180-2021-SEC OF THE 1ST RESPONDENT. True copy PS to Judge