KUMARAN v. STATE OF KERALA AND OTHERS

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942 ## WA.No.1569 OF 2020 AGAINST THE ORDER/JUDGMENT IN WP(C) 25893/2020(J) OF HIGH COURT OF KERALA ## APPELLANT/S: KUMARAN AGED 52 YEARS S/O CHELLAPPAN, KAVUVILA VEEDU, ALAMPARA, NANDIYODU, PACHA P.O.THIRUVANANTHAPURAM DISTRICT, PIN-695 562. BY ADV. SRI.V.VENUGOPALAN NAIR ## RESPONDENT/S: - 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, LEGISLATURE SECRETARIATE, THIRUVANANTHAPURAM-695 001. - 2 THE RETURNING OFFICER, NANDIYODU GRAMA PANCHAYATH, NANDIYODU, THIRUVANANTHAPURAM DISTRICT, PIN-695 564. - 3 NANDIYODU GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, OFFICE OF NANDIYODU GRAMA PANCHAYATH, THIRUVANANTHAPURAM DISTRICT, PIN-695 564. - 4 THE THIRUVANANTHAPURAM DISTRICT PANCHAYATH, REPRESENTED BY ITS SECRETARY, OFFICE OF THE DISTRICT PANCHAYATH, THIRUVANANTHAPURAM-695 0011. - 5 THE STATE ELECTION COMMISSIONER, KERALA , JANAHITHAM, TC-276(2) VIKAS BHAVAN P.O.THIRUVANANTHAPURAM-PIN 695 033. - 6 SRI. PACHA RAVI, AGED 75 YEARS S/O PADMALAYAM, ORUKKUZHI, PALUVALLY P.O.NANDIYODU, THIRUVANANTHAPURAM DISTRICT, PIN-695 564. W.A No. 1569/2020 : 2 : 7 SRI. VISHNU PRASANNAN, AGED 27 YEARS S/O PRASANNA KUMAR, JUSHNU BHAVAN, KOCHUTHANNI MOODU, PACHA P.O.NANDIYODU, THIRUVANANTHAPURAM DISTRICT, PIN695 564. 8 ARUN S.B, AGED 33 YEARS S/O SADAN BABU, SADANA VILASOM ALAMPARA, PACHA P.O.PALODU VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN-695 564. ## OTHER PRESENT: SRI.AKHIL GEORGE FOR SRI.V.VENUGOPALAN NAIR FOR APPELLANT, SRI.C.M.NAZAR, SPL. GP FOR R1 AND R4, SRI.MURALI PURUSHOTHAMAN,SC FOR R5 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A No. 1569/2020 : 3 : Dated this the 1st day of December, 2020. ## **JUDGMENT** ## **SHAJI P. CHALY, J.** The captioned writ appeal is filed by the petitioner in W.P.(C) No. 25893 of 2020 challenging the judgment dated 25.11.2020, whereby the writ petition was dismissed declining interference in Ext. P1 order dated 20.11.2020 passed by the 2[nd] respondent Returning Officer rejecting the nomination submitted by the appellant to ward No. 16 of Nandiyodu Grama Panchayat, the third respondent in the appeal. It is, thus, challenging the legality and correctness of the said judgment of the learned single Judge, this appeal is preferred. 2. Brief material facts for the disposal of the appeal are as follows: The appellant submitted his nomination for contesting as a candidate from Ward No. 16 of Nandiyodu Grama Panchayat, on 19.11.2020. However, it was rejected on 20.11.2020 as per Ext. P1 order by the Returning Officer, stating that as per the District Panchayat Secretary's letter No. P4.4830/2020/TDP dated 11.11.2020, the appellant has been given the status of liability upto 2022, 2023 years in connection with construction work. 3. The learned single Judge, after taking into account the fact that W.A No. 1569/2020 : 4 : election was notified and in accordance with Article 243-O(b) of the Constitution of India, no election to any Panchayat shall be called in question except by an Election Petition presented to such authority and in such a manner as is provided for by or under any law made by the Legislature of a State and also taking note of the proposition of law laid down by the Apex Court in _**N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem District**_ [AIR 1952 SC 64] in regard to Article 329(b), and _**Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and**_ _**others**_ [AIR 1978 SC 851], in regard to Article 329 (b) of the constitution of India, held that the writ petition submitted under Article 226 of the Constitution of India cannot be maintained under law. 4. We have heard the learned counsel for the appellant Sri. V. Venugopalan Nair, learned Special Government Pleader Sri. C.M. Nazar and the learned Standing Counsel for the State Election Commission Sri. Murali Purushothaman, and perused the pleadings and materials on record. 5. The paramount contention advanced in the appeal is that in the judgment in _**Election Commission of India through Secretary v.**_ _**Ashok Kumar and others**_ [(2000) 8 SCC 216], the Apex Court held that the powers conferred on the Election Commission are not W.A No. 1569/2020 : 5 : unbridled and judicial review would be permissible over a statutory body exercising its function affecting public law rights, though the review would depends on the facts and circumstances of each case. 6. That apart, it was pointed out that in accordance with the law laid down in _**Ashok Kumar**_ , if there is any arbitrariness or _mala fides_ , the power created under the Constitution of India and the Kerala Panchayat Raj Act, 1994 ('Act, 1994' for short) would not stand in the way of this Court granting relief to an aggrieved person exercising the power conferred under Article 226 of the Constitution of India. 7. On the other hand, the learned Standing Counsel for the Election Commission submitted that the appellant has not even pointed out any _mala fides_ in the writ petition except stating that the action of the Returning Officer is _per se_ arbitrary, biased and illegal and also in violation of the principles of natural justice. 8. We have verified the memorandums, of appeal as well as the writ petition and we find that even though in the appeal, the appellant has relied upon the judgment in _**Ashok Kumar**_ to contend that the action of the Returning Officer was _mala fide_ , no _mala fides_ are specifically alleged either in the writ petition or in the appeal memorandum. We are also of the considered opinion that if there are any _mala fides_ , the same should be mentioned specifically in the memorandum so as to W.A No. 1569/2020 : 6 : enable a court to identify the exact nature of the _mala fides_ and adjudicate upon the issue. Having not pleaded any _mala fides_ specifically, mere mention in the writ petition that the action of the Returning Officer is _mala fide_ and arbitrary would not suffice the situation in order to apply the principles of law laid down by the Apex Court in _**Ashok Kumar**_ (supra). 9. We are of the considered opinion that the issue with respect to the scope of interference of a writ court in an election to parliamentary as well as the legislatures of a State was considered by the Apex Court in _**N.P. Ponnuswami**_ (supra) and it was held that if there is a remedy available under a statute to challenge the election that statutory framework should be resorted to and no action can be taken so as to interfere with the progress of the election. It was also clearly held there that no writ petition shall be entertained under Article 226 of the Constitution of India, since a remedy is provided under the Representation of the People Act, 1951 to challenge the election and since it is rendered by a Six Member Constitution Bench, we are bound by the said judgment, as well as the judgment in _**Mohinder Singh Gill**_ (supra) rendered by a five member Constitution Bench. 10. We are also informed by the learned Standing Counsel for the Election Commission that on 23.11.2020, the list of contesting W.A No. 1569/2020 : 7 : candidates is published and ballot papers are given for printing in accordance with the procedure prescribed under the Act, 1994. 11. Now, we have come across Section 87 of the Act, 1994, which is a provision _in pari materia_ with Section 80 of the Representation of the People Act, 1951, which clearly specifies that no election shall be called in question except by an Election Petition presented in accordance with the provisions of Chapter X of Act, 1994. So also, Section 102 of the Act, 1994 dealing with the ground for declaring election to be void, takes in the rejection of nomination as per clause (c) of sub-Section (1) thereof. Therefore, there is a clear statutory remedy available to the appellant to redress his grievances and therefore, a writ petition was not maintainable under law. It was exactly on the said ground that the writ petition was dismissed by the learned single judge . 12. Therefore, we are of the considered opinion that the learned single Judge was right in dismissing the writ petition. So also, the question with respect to the rejection of nomination to the local body elections was considered elaborately by us in the judgment in W.A. No. 1550 of 2020 dated 27.11.2020 in the realm of Kerala Municipality Act, 1994 taking into account the entire legal aspects, and the facts and figures and the findings rendered thereunder would strictly apply to W.A No. 1569/2020 : 8 : this case also. Therefore, we have no hesitation to hold that the appellant has not made out any case to interfere with the judgment of the learned single Judge in an intra-court appeal filed under Section 5 of the Kerala High Court Act. Needless to say, writ appeal fails and accordingly it is dismissed. sd/- **S. MANIKUMAR,** **CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE** . Rv