MANOJ KUMAR v. MOHANAN and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 14[TH] DAY OF SEPTEMBER 2022/23RD BHADRA, 1944** **WP(C) NO. 16622 OF 2021** ## **PETITIONER:** **MANOJ KUMAR AGED 56 YEARS S/O. RAGHAVAN, AR COTTAGE, MANGODE, MANGODE P.O, CHITHARA, KOLLAM DISTRICT, PIN – 691559.** **BY ADVS. C.RAJENDRAN K.VIJAYAN** ## **RESPONDENTS:** - **1 MOHANAN AGED 50 YEARS S/O. SANKARAN, AMMUTTY, CHITHARA, AYIRAKUZHI P.O, KOLLAM - 691559.** - **2 M.A LATHEEF RASIYA MANZIL, MANGODE P.O, KOLLAM DISTRICT - 691559.** - **3 CHITHARA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, CHITHARA P.O, KOLLAM DISTRICT - 691559.** - **4 SUNIL SADANANDAN S/O. SADANANDAN, SECRETARY, CHITHARA GRAMA PANCHAYATH, RESIDING AT MARAD, VATTATHANAM P.O, KUNNIL, KADAKKAL, KOLLAM - 691021.** - **5 RAJALAKSHMI ASSISTANT DIRECTOR, AGRICULTURE DEPARTMENT, CHADAYAMANGALAM, KOLLAM - 691534, (RETURNING OFFICER, CHITHARA GRAMA PANCHAYATH)** - **6 THE KERALA STATE ELECTION COMMISSION JANAHITHAM TC-27/6(2), VIKAS BHAVAN P.O, THIRUVANANTHAPURAM - 695033.** W.P.(C) No.16622/2021 : 2 : **7 THE ASSISTANT DIRECTOR OF PANCHAYATHS KOLLAM DISTRICT, PANCHAYATH, KOLLAM DISTRICT – 691001.** **BY ADVS. SRI.S.ABHILASH SMT.RENUKA VENU SHRI.SIJU KAMALASANAN, SC, CHITHARA GRAMA PANCHAYATH SHRI.DEEPU LAL MOHAN, SC, STATE ELECTION COMMISSION, KERALA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.16622/2021 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.16622 of 2021 ````````````````````````````````````````````````````````````` _Dated this the 14[th] day of September, 2022_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, who was a candidate contested in the election to the Chithara Grama Panchayat from Mangode Ward, has approached this Court seeking to quash the election of 1[st] respondent to the Grama Sabha of Chithara Grama Panchayat, Kollam and to direct the 3[rd] respondent not to permit the 1[st] respondent to participate in the meetings of Grama Sabha of Chithara Grama Panchayat. 2. The petitioner was a candidate in Mangode Ward of Chithara Grama Panchayat, in the election to the Panchayat Committee held on 10.12.2020. After counting of votes, the 1[st] respondent was declared elected from the Ward, on 16.12.2020. W.P.(C) No.16622/2021 : 4 : 3. The petitioner states that the real address of the 1[st] respondent is “Mohanan, Ammootty, Chithara, Chithara P.O.” It is one Rama Devi who is the owner of House No.295 of Mangode Ward. The 1[st] respondent never resided in the said House No.295. The 1[st] respondent falsely fabricated Ext.P4 voters list to show his house address as Ammootty House, House No.295, Ward No.15 (Mangode Ward). 4. The petitioner submitted a complaint in this regard before the State Election Commission. The Election Commission rejected the complaint stating that if the petitioner has any complaint against the residence of the 1[st] respondent, the petitioner should have filed a petition within 30 days of the election. The petitioner would urge that the 1[st] respondent has many relatives in Mangode Ward and he included the name of his wife, son and and daughter in the Voters List of Mangode Ward. 5. The counsel for the petitioner argued that the 1[st] respondent has committed manipulation and fraud by including his name and the names of his family members in W.P.(C) No.16622/2021 : 5 : the Voters List of Mangode Ward, though he and his family did not reside in the address shown in the Voters List. As the issue involves fraud and manipulations, this Court can interfere in the matter in view of the judgment of this Court in _**Eldhose K.T. and another v. State of Kerala and others** [2020 (6) KLT 356]._ 6. The counsel for the petitioner further argued that for transfer of 1[st] respondent’s name from Ward No.2 where he resided, to Ward No.15 (Mangode Ward), the 4[th] respondent-Secretary ought to have followed the procedure laid down in Section 24 of the Kerala Panchayat Raj Act. Section 18 of the Kerala Panchayat Raj Act mandates that no person shall be registered in the electoral roll for more than one constituency. Therefore, the 1[st] respondent is not qualified to be a Member of the Panchayat, contended the learned counsel for the petitioner. 7. The 1[st] respondent contested the writ petition. The 1[st] respondent submitted that the prayer of the petitioner relates to election to Grama Sabha. There is no requirement W.P.(C) No.16622/2021 : 6 : of any election to Grama Sabha. The 1[st] respondent possessed authentic documents including voter’s ID issued by the Election Commission of India and it was based on concrete evidence that his name was included in the voter’s list. The petitioner has not objected to or challenged the voters list. A criminal complaint was filed by the petitioner in this regard, against the 1[st] respondent. The Police made investigation and ultimately rejected the complaint filing refer report. 8. The State Election Commission also opposed the writ petition. In effect, the challenge made by the petitioner is against election of the 1[st] respondent. Therefore, Election Petition is the only remedy available to the petitioner. A writ petition is not maintainable. Article 243O(b) of the Constitution of India would make it imperative for the petitioner to file Election Petition to challenge the election of the 1[st] respondent. The petitioner could have filed appeal against the Electoral roll. The petitioner has not filed any appeal, contended the Standing Counsel for the Kerala State W.P.(C) No.16622/2021 : 7 : Election Commission. 9. The Standing Counsel for the Panchayat also vehemently opposed the writ petition and argued that the Electoral Registration Officer is not made a party to the writ petition and hence the writ petition is liable to be dismissed for non-Joinder of necessary parties. 10. I have heard the learned Counsel for the petitioner, the learned counsel for the 1[st] respondent, the learned Standing Counsel for the State Election Commission and the learned Government Pleader representing the official respondents. 11. The petitioner alleges that the 1[st] respondent was not a resident of House No.295 of Mangode Ward of Chithara Grama Panchayat, but manipulated the voters list and got himself and his family members included in the voters list of Mangode Ward. The election of the petitioner as a Member is therefore illegal and is liable to be set aside. The 1[st] respondent shall not be permitted to participate in the meetings. Though in the prayer/relief portion of the writ W.P.(C) No.16622/2021 : 8 : petition the petitioner describes the election of 1[st] respondent as a Member of the Grama Sabha, no election is contemplated by law to be a Member of any Grama Sabha in a Panchayat and the 1[st] respondent has contested and elected to the Panchayat Committee from a Ward. In effect, the petitioner is challenging the election of the 1[st] respondent to the Panchayat Committee. 12. The challenge made by the petitioner is based on alleged manipulations in the voters list whereas the petitioner's name has been included. Section 22 of the Kerala Panchayat Raj Act, 1994 deals with preparation and revision of electoral rolls. Section 23 provides for correction of electoral rolls. Section 25 provides for an appellate remedy in the matter of electoral rolls. The petitioner has not raised any objection nor has filed appeal against the inclusion of the 1[st] respondent in the electoral roll. Therefore, the petitioner is precluded from making any challenge based on the electoral roll, in these writ proceedings. Irregularity in preparing electoral roll by including persons not qualified for W.P.(C) No.16622/2021 : 9 : being enrolled as a voter cannot be a ground to challenge election. 13. The petitioner cannot be permitted to challenge the election of the 1[st] respondent to the Panchayat because Section 87 of the Kerala Panchayat Raj Act, 1994 mandates that no election shall be called in question except by an election petition presented in accordance with the provisions of Chapter X of the Act, 1994. Section 89 provides that an election petition calling in question any election may be presented on one or more grounds specified in Section 102 and Section 103 within 30 days from the date on which the returned candidate was declared elected. The petitioner has not filed any petition before the competent forum within the stipulated time. 14. The argument of the petitioner is that since there is an element of fraud and manipulation in including the 1[st] respondent in the voters list of Mangode Ward, the petitioner can file and sustain a writ petition under Article 226 of the Constitution of India. Exts.R1(a) and R1(b) would show that W.P.(C) No.16622/2021 : 10 : there was change in the residence of the 1[st] respondent and it was based on Ext.R1(b) electoral identity card issued by the Election Commission of India that the petitioner's name was included in the electoral roll of Mangode Ward. For all the afore reasons, the writ petition is without any merits. Hence, the writ petition is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/16.09.2022 W.P.(C) No.16622/2021 : 11 : ## **APPENDIX OF WP(C) 16622/2021** **PETITIONER'S EXHIBITS** **Exhibit P1 A TRUE PHOTOCOPY OF THE FINAL LIST OF CANDIDATES DATED 23.11.2020.** **Exhibit P2 A TRUE PHOTOCOPY OF THE ELECTION RESULT PUBLISHED BY THE 3RD RESPONDENT DATED 16.12.2020.** - **Exhibit P3 A TRUE PHOTO COPY OF THE NOMINATION PAPER SUBMITTED BY THE FIRST RESPONDENT DATED 18.11.2020.** - **Exhibit P4 A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE VOTERS LIST DATED 20.10.2020.** - **Exhibit P5 A TRUE PHOTO COPY OF THE LETTER DATED 12.03.2021 BY THE CHITHARA GRAMA PANCHAYATH.** - **Exhibit P6 A TRUE PHOTO COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT DATED 17.12.2020.** - **Exhibit P7 A TRUE PHOTO COPY OF THE LETTER DATED 12.01.2021 ISSUED BY THE 6TH RESPONDENT.** - **Exhibit P8 A TRUE PHOTOCOPY OF THE APPEAL BEFORE THE ASSISTANT DIRECTOR OF PANCHAYATH'S DATED 24.02.2021.** - **Exhibit P9 A TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE ASSISTANT DIRECTOR OF PANCHAYATH'S DATED 23.03.2021.** - **Exhibit P10 A TRUE PHOTOCOPY OF THE APPEAL SUBMITTED BY THE PETITIONER'S AGENT DATED 08.03.2021 TO THE DISTRICT PANCHAYATH ASST.DIRECTOR, KOLLAM.** - **Exhibit P11 A TRUE PHOTO COPY OF THE ORDER OF THE ASSISTANT DIRECTOR OF PANCHAYATH'S DATED 20.04.2021.** **Exhibit P12 A TRUE PHOTOCOPY OF THE REPLY DATED 26.04.2021 ISSUED BY THE 3RD RESPONDENT.** W.P.(C) No.16622/2021 : 12 : ## **Exhibit P13** **A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF VOTERS LIST OF THE PART NO.1 MANGODE WARD IN CHITHARA GRAMA PANCHAYATH, WITH VOTERS INCLUDED ADDITIONALLY AND EXCLUDED FROM THE LIST DATED 15/06/2020.** ## **RESPONDENT'S EXHIBITS** **Exhibit R1 A** **A TRUE COPY OF THE VOTERS ID NO. FWD0974709 ISSUED BY THE ELECTION COMMISSION OF INDIA ON 9.4.2019.** **Exhibit R1 B THE COPY OF ELECTORAL IDENTITY CARD OF THE 1ST RESPONDENT NO.FWD0974709 DATED 5.10.2000** **Exhibit R1C** **Exhibit R1D** **A TRUE COPY OF THE COMMUNICATION ISSUED BY THE ELECTION COMMISSION NO.B1-30138/2019-SEC DATED 6.2.2020** **A COPY OF THE COMMUNICATION DATED 6.11.2021 ISSUED BY THE SECRETARY, CHITHARA GRAMA PANCHAYAT TO THE SHO, CHITHRARA POLICE STATION IN REPLY TO AN ENQUIRY.**