Jabir v. Returning Officer/Registrar, Calicut University and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 13[TH] DAY OF JUNE 2023 / 23TH JYAISHTA, 1945 WP(C) NO. 18232 OF 2023 PETITIONERS:** 1 JABIR V AGED 20 YEARS S/O MUHAMMED, PEDIKAKANDI HOUSE, KAVUNGAPPARA, PALAKKAD -, PIN - 676306 2 MUHAMMAD SHAHUL HUNAIF AGED 22 YEARS , S/O HAMSA ALIPARAMBA PAKKATH HOUSE, ALIPPARAMBA, ALIPPARAMBA-, PIN - 679357 3 MUHAMMED ANAS P.K AGED 24 YEARS S/O KAREEM POOZHIKUNNUMMAL HOUSE, POOKODE, THAZHAMPYIL, THAMARASSERY-, PIN - 673573 4 MUHAMMAD RASAL AGED 19 YEARS, S/O SAJID K , KANNIYAN KANDI,CHERAPURAM-., PIN - 673507 5 ADIL SALAH.E P AGED 20 YEARS S/O PAREETH,ELAMKUZHI HOUSE, CHERUVAYOOR ,POVAZHAKKAD-., PIN - 673645 6 SAJEENA ADIYATTIL AGED 19 YEARS D/O ABDU SAMAD, ADIYATTIL HOUSE, KALPAKANCHERY PO,PARAVANNUR-, PIN - 676551 7 NAJEEBA A P, AGED 20 YEARS D/O P A M HANEEF ,ATHAKKINTE PURAKKAL,ALUNGAL BEACH,CHETTIPADI-, PIN - 676319 8 AMIRA SHERIN P C AGED 19 YEARS, D/O C K P REHIM, PULLOONI CHALIL, VATAYAM, KAKKATTIL ,CALICUT-., PIN – 673507 9 RASHIF MON K AGED 20 YEARS, S/O RAFEEQ K,KONGATH HOUSE, THIRUVAZHAMKUNNU. P.O KOTTAPADAM, MANNARKKAD, PALAKKAD-., PIN - 678601 |W.P.(C)No.18232/2023<br>2|W.P.(C)No.18232/2023<br>2| |---|---| |10|IJAS AHAMMED K.E| ||AGED 22 YEARS.,S/O IBRAHIM K.,KAROKKIL| ||HOUSE,KARIMBA. P.O,PALLIPADI, PALAKKAD-, PIN -| ||678597| |11|ABU SWALIH. M| ||AGED 20 YEARS, S/O MUHAMMED, MATTATH| ||HOUSE,TIRURANGADI-., PIN - 676306| |12|MUHAMMED DANISH MK| ||AGED 19 YEARS| ||S/O HASSAN M K MALAYIL KANNANCHERI| ||HOUSE,VALLIKKUNNU,ATHANIKKAL-, PIN - 673314| |13|AJEEB RAFAN| ||AGED 21 YEARS| ||S/O MUJEEB,KANDAMPULAKKAL HOUSE| ||PARAPPOTHADAM,CHERIYAMUNDAM-., PIN - 676106| |14|AKHILA JABIN C T| ||AGED 20 YEARS, D/O SAREENA. CK,CHETTIYAMTHODI| ||HOUSE,KADANNAMANNA PO,MANKADA-., PIN - 679324| |15|MOHAMMED SALEEQ KP| ||AGED 22 YEARS| ||S/O PAREETH, KARAPPOOLA HOUSE, PATTERKULAM,| ||MANJERI, NARUKARA PO-., PIN - 676122| |16|MUHAMMED ALI SHIHAB P S| ||AGED 21 YEARS, S/O SHARAFUDHEEN, POOVALLOOR HOUSE| ||ARAMKALLU, MULLAKARA, PATTIKKAD-, PIN - 680652| |17|FIDA NARGHEES.K| ||AGED 21 YEARS| ||D/O ANWARUDHEEN.K,KANHIRALA HOUSE ,PERAKAMANN,| ||POOTHAYI-., PIN – 676541| |18|SHIBLA SHERIN.P| ||AGED 20 YEARS| ||D/O SIDDIQUE,POKLATH| ||HOUSE,PATHAMPAD,NIRAMARUTHUR-, PIN - 676109| |19|NAJIH NOOR| ||AGED 24 YEARS,S/O MOHAMMED .N,CHAKKUM THODUVIL| ||HOUSE,MUTHUVALLUR, MUTHUVALLUR-, PIN - 673638| |20|DHILSHAD KP| ||AGED 24 YEARS,S/O POKKER, KARINGAPPARA| ||HOUSE,ATHAVANAD,MALAPPURAM-, PIN – 676301| W.P.(C)No.18232/2023 3 21 AMEEN ABDULLAH P AGED 19 YEARS PADUPPUNGHAL HOUSE,MOOTHEDAM-, PIN - 679331 BY ADVS. P.E.SAJAL AJAS K.S. ## **RESPONDENTS:** - 1 THE RETURNING OFFICER/THE REGISTRAR CALICUT UNIVERSITY, MALAPPURAM -, PIN - 673635 - 2 DEAN OF STUDENT'S WELFARE, UNIVERSITY OF CALICUT, MALAPPURAM-, PIN - 673635 - 3 UNIVERSITY OF CALICUT REPRESENTED BY THE REGISTRAR,UNIVERSITY OF CALICUT, MALAPPURAM-, PIN - 673635 - 4 THE PRINCIPAL M.A.O COLLEGE OF ARTS AND SCIENCE , ELAYUR, IRUVETY P.O ,MALAPPURAM-, PIN - 679639 - 5 THE PRINCIPAL, ANVARUL ISLAM ARABIC COLLEGE,THIRURKKAD,MALAPPURAM-, PIN - 679321 - 6 THE PRINCIPAL, SSM COLLEGE OF TEACHER EDUCATION, NELLIKKAPARAMBA, MUKKAM, KOZHIKKODE -, PIN – 673602 - 7 THE PRINCIPAL, IDEAL COLLEGE OF ARTS AND SCIENCE, KUTTIADI, KOZHIKKODE-, PIN - 673528 - 8 THE PRINCIPAL, BLOSSOM ARTS AND SCIENCE COLLEGE, KONDOTTY, MALAPPURAM -, PIN - 673638 - 9 THE PRINCIPAL, BAFAKHY YATHEEMKHANA BED COLLEGE, KALPAKANCHERY, MALAPPURAM-, PIN - 676551 - 10 THE PRINCIPAL SHAREE'ATH COLLEGE FOR WOMEN, CHAPPAPARA, THENHI PALAM, MALAPPURAM -, PIN - 673636 - 11 THE PRINCIPAL, MALABAR ARTS AND SCIENCE COLLEGE FOR WOMEN, CHEKKIAD, CALICUT-, PIN - 673509 W.P.(C)No.18232/2023 4 - 12 THE PRINCIPAL, NAJATH ARTS & SCIENCE COLLEGE, NELLIPUZHA , MANNARKKAD, PALAKKAD-, PIN - 678582 - 13 THE PRINCIPAL, ISHA-ATHUL ISLAM ARABIC COLLEGE, PARAPPANANGHADI, MALAPPURAM -, PIN - 676303 - 14 THE PRINCIPAL, AL HIDAYA ARABIC COLLEGE, THURAKKAL, KONDOTTY MALAPPURAM -, PIN - 673638 - 15 THE PRINCIPAL, LUMINOUS ARTS AND SCIENCE COLLEGE, VETTICHIRA, MALAPPURAM -, PIN - 676552 - 16 THE PRINCIPAL, JAMIA NADIWIYA WOMENS ARABIC COLLEGE, EDAVANNA, MALAPPURAM -, PIN - 676123 - 17 THE PRINCIPAL,MCT TRAINING COLLEGE, MELMURY, MALAPPURAM -, PIN – 676517 - 18 THE PRINCIPAL, MCT COLLEGE OF LEGAL STUDIES, MELMURY MALAPPURAM -, PIN - 676517 - 19 THE PRINCIPAL, JAMIA NADIWIYA ARTS AND SCIENCE COLLEGE, EDAVANNA, MALAPPURAM -, PIN - 676541 - 20 THE PRINCIPAL,SAYYID MUHAMMADALI SHIHAB THANGHAL MEMORIAL ARTS AND SCIENCE WOMENS COLLEGE,KATTILANGHADI- MALAPPURAM -, PIN - 676301 - 21 THE PRINCIPAL, JAMIA NADIWIYA TRAINING COLLEGE, EDAVANNA, MALAPPURAM-, PIN - 676541 - 22 THE PRINCIPAL,MARKAZ TRAINING COLLEGE, ATHAVANAD, MALAPPURAM-, PIN - 679571 - 23 THE PRINCIPAL,MARTHOMA COLLEGE OF ARTS AND SCIENCE CHUNGATHARA, MALAPPURAM-, PIN - 679334 ## **OTHER PRESENT:** SRI. P C SASIDHARAN (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.18232/2023 5 ## **JUDGMENT** The petitioners have approached this Court being aggrieved by the fact that their names are not included in Ext.P7 electoral roll/list of voters regarding elections to be held to the Senate of the 3[rd] respondent University. According to the petitioners, they are duly elected University Union Councilors, and therefore, they are entitled to be included in Ext.P7. 2. Sri.P.E Sajal, the learned counsel appearing on behalf of the petitioners, would contend that in terms of Section 17 of the Calicut University Act, ten (10) members are to be elected to the Senate by elected members of the General Council of the University Union, which is, in turn, constituted by University Union Councilors from various Colleges affiliated to the 3[rd] respondent University. The petitioners contend that as per Statute 15 of Chapter I of the Calicut University (Conduct of Elections to Various Authorities or Bodies) First Statutes, 1975 (hereinafter referred to as the First Statutes, 1975), the Returning Officer has got the power to make any addition, correction, alteration or deletion in an electoral roll provided facts necessitating such corrections are brought to his notice within 15 days after the publication of the electoral roll. It is submitted that the petitioners, therefore, submitted W.P.(C)No.18232/2023 6 Ext.P8 joint representation/complaint regarding non-inclusion in Ext.P7 electoral roll, which was rejected by Ext.P9 for reasons stated against the names of each of the petitioners. It is submitted that Ext.P9 was issued without hearing the petitioners and violates the principles of natural justice. Reference is made to the judgment of the Supreme Court in _**University of Kerala v. Council, Principal's, Colleges, Kerala and others; (2006) 8 SCC 304**_ and in particular to the directions in paragraphs 6.8., 6.8.3, 6.8.4, 6.8.5 and 6.8.6 thereof. The decision of this Court in _**Subair A. v. Chief Election Commissioner of Kerala; 2019(3) KHC 548**_ is referred to establish that removing a name from the electoral roll has severe consequences and must therefore be preceded by notice. It is submitted that the petitioners had approached this Court earlier regarding the inclusion of their names in the voter's list for the University Union election, and those proceedings were closed by Ext.P14 judgment holding that since the petitioners had been permitted to cast their votes, nothing further survives for consideration in those writ petitions. It is submitted that the total number of University Union Councilors is 494, but only the names of 469 University Union Councilors are included in Ext.P7. It is submitted that the petitioners' names had been removed based on a complaint filed by a Students Organization, and reference is made in this regard to Ext.P15. It is submitted that a complaint can be W.P.(C)No.18232/2023 7 filed only by a student or by an injured or affected party and by persons who are directly aggrieved, going by the judgment of the Supreme Court in _**University of Kerala (supra)**_ . It is submitted that in terms of Statute 27 of the First Statutes, 1975, the electoral roll of the members of the General Council of the University Union shall contain the name and college address of all the members of the General Council of the University Union constituted by the University. It is submitted that the provisions of the First Statutes, 1975 also contain provisions regarding the maintenance of electoral rolls etc., and the same had been violated in the case of the petitioners. 3. Sri.P.C Sasidharan, the learned Standing Counsel appearing for respondents 1 to 3 would raise a preliminary objection regarding the maintainability of the writ petition. It is submitted with reference to the judgment of the Supreme Court in _**Gujarat University v. N.U. Rajguru and others; 1987 (Supp) SCC 512**_ that where the Statute provides for a machinery or forum for determination of a dispute arising out of an election, the aggrieved person should pursue his remedy before the forum provided by the Statute. It is submitted that the University had issued U.O. No.5258/2023/Admn dated 21.3.2023, reconstituting the General Council of the University Union with a list of 469 councilors. It is submitted that the petitioners are not included in the said list, and there is no direction of any nature to include the W.P.(C)No.18232/2023 8 petitioners in the General Council. It is submitted that only those included in the General Council are entitled to vote for the election of ten (10) members to the Senate of the University. It is submitted that the Electoral Officer had considered the complaints raised and had issued Ext.P9 proceedings rejecting the claim. It is pointed out that Ext.P9 also indicates that the signature of the students who are stated to have submitted the representation varies in many cases, and the genuineness of the complaint itself is doubtful. It is submitted that the question of violation of natural justice does not arise as the right to vote at an election is only a statutory right and not a natural or fundamental right. It is submitted that no relief is sought in the writ petition for the inclusion of the names of the petitioners within the General Council of the University Union. It is submitted that the earlier orders permitting the petitioners to cast their votes for the University Union Council have no bearing on the facts of the present case. It is submitted that the petitioners were not included in the electoral roll of the General Council of the University Union since the college authorities managing the colleges from where the petitioners are stated to have been elected did not conduct any proper election and they were simply forwarding specific names showing that certain persons had been elected. Paragraphs 27 to 38 of the counter affidavit are referred to point out that the elections conducted in the colleges in question were a farce and, W.P.(C)No.18232/2023 9 therefore, the petitioners have no right to be included in Ext.P7 electoral roll. 4. Having heard the learned counsel for the petitioners and the learned counsel appearing for respondents 1 to 3, I am certain that the petitioners are not entitled to any relief in the present writ petition. The decision of the Supreme Court in _**University of Kerala (supra)**_ , deals explicitly with elections to student unions and the directions contained in paragraph 6.8., obviously apply only to College Union elections and not to elections to the Senate of the University as the elections to the Senate of a University are governed by separate statutory provisions (here the First Statutes, 1975). In _**Subair A (supra)**_ this Court had taken the view that deletion of a name of a person from the electoral roll on the ground that the voter has shifted his house elsewhere is a serious matter, and the Electoral Registration Officer is bound to give notice to the voter before the name is removed. This decision cannot come to the aid of the petitioners as the facts, in that case, are entirely different from the case on hand. In the case on hand, the petitioners' names did not find a place in Ext P.7 allegedly on account of the fact that no proper elections were held to the College Union in the respective Colleges from where the petitioners claim to be elected. According to the University, and as set out in paragraphs 27 to 38 of the counter affidavit filed by respondents 1 to 3, there are specific W.P.(C)No.18232/2023 10 allegations that the elections in the colleges in question have not been held correctly. Therefore, the issues raised in this writ petition cannot be adjudicated in a writ petition under Art. 226 of the Constitution of India and the principles laid down in _**Gujarat University (supra)**_ will clearly apply. In paragraph 6 of the _**Gujarat University (supra)**_ , it was held:- _"6. It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental nor a common law right instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the,jurisdiction of the High Court under Art.226 of the Constitution bypassing the machinery designated by the Act for determination of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify bypassing the alternative remedies. In the instant case, there existed no circumstance justifying departure from the normal rule as even the challenge to the validity of statute 10 was not pressed by the respondents before the High Court."_ I am of the view that the petitioners can challenge the question of their removal from the electoral roll only through a duly constituted election petition filed in terms of the First Statutes, 1975. The contention of the learned counsel for the petitioners that the names of the petitioners were removed based on a complaint filed by a Students Organization is attractive at first blush. However, for reasons already noted, this also is a matter to be investigated in a duly constituted election petition and not through a writ petition under Art. 226 of the Constitution of India. W.P.(C)No.18232/2023 11 For all these reasons, the writ petition fails, and it is accordingly dismissed. I make it clear that I have not expressed any opinion on the merits of the claim raised by the petitioners, and all contentions shall be considered in a duly constituted election petition (if such petition is filed) untrammelled by any observation in this judgment. Sd/- ## **GOPINATH P.** **JUDGE** acd W.P.(C)No.18232/2023 12 ## **APPENDIX OF WP(C) 18232/2023** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE COLLEGE UNION ELECTION NOTIFICATION DATED 19/10/2022 Exhibit P2 TRUE COPY OF THE ELECTION RESULT ALONG WITH UUC PROFORMA OF THE PETITIONERS Exhibit P3 TRUE COPY OF THE ELIGIBLE LIST OF THE COLLEGES DATED 30/11/2022 Exhibit P4 TRUE COPY OF THE COMMUNICATION DATED 22.02.2023 Exhibit P5 TRUE COPY OF THE GENERAL NOTIFICATION FOR CONDUCTING ELECTION TO THE RECONSTITUTION OF THE SENATE OF THE 2ND RESPONDENT UNIVERSITY IN 10 CONSTITUENCIES DATED 27/02/2023 Exhibit P6 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT Exhibit P7 TRUE COPY OF THE ELECTORAL ROLL DATED 15-04-2023 Exhibit P8 TRUE COPY OF THE JOINT REPRESENTATION/COMPLAINT BEFORE THE 1ST RESPONDENT Exhibit P9 TRUE COPY OF THE PROCEEDINGS DATED 15.05.2023 ISSUED BY THE 1ST RESPONDENT Exhibit P10 TRUE COPY OF THE NOTIFICATION WITH APPENDIX (SCHEDULE FOR CONDUCTING ELECTION) Exhibit P11 TRUE COPY OF THE INTERIM ORDERS IN WPC 6760/2023, 6821/2023, 6764/2023, 6592/2023 DATED 03.03.2023 Exhibit P12 TRUE COPY OF THE ORDER IN INTERLOCUTORY APPLICATION IN THE WPC 6592/2023 AND CONNECTED CASES (IN WP(C) 6760/2023, 6821/2023, 6764/2023) Exhibit P13 TRUE COPY OF THE BALLOT PAPER ACCOUNT W.P.(C)No.18232/2023 13 DATED 15.03.2023 Exhibit P14 THE CONTENTIONS OF BOTH SIDES ARE LEFT OPEN. TRUE COPY OF THE JUDGEMENT IN THE WPC 6592/2023 AND CONNECTED CASES (IN WP(C) 6760/2023, 6821/2023,6764/2023) DATED 22.03.2023 Exhibit P15 TRUE COPY OF THE COMPLAINT DATED 07/12/2022