Palayyan A. Prasad v. State Election Commission and Returning Officer, Karunapuram Grama Panchayat

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932** **WP(C).No. 31025 of 2010(C)** **---------------------------------------** **PETITIONER:** **-------------------** **PALAYYAN A.PRASAD, S/O.LATE A.K.PRASAD, AGED 62 YEARS, MAYA BHAVAN, RAMAKKALMEDU P.O - 685 552, KALLAR VIA., IDUKKI DISTRICT.** **BY PALLAYYAN A PRASAD (PARTY IN PERSON).** **RESPONDENTS:** **------------------------** **1. THE STATE ELECTION COMMISSION, PATTOM P.O., THIRUVANANTHAPURAM, PIN – 695 001,** **2. THE RETURNING OFFICER, KARUNAPURAM GRAMA PANCHAYATH, KARUNAPURAM, UDUMBANCHOLA TALUK, UDUMBANCHOLA.P.O., IDUKKI DISTRICT – PIN: 685 553.** **R1 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMN.,** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/10/2010, ALONG WITH W.P.(C).NO.31053/2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **prv.** ## **ANTONY DOMINIC, J. ================ W.P.(C) NOs. 31025, 31028, 31030, 31031, 31035, 31045, 31047, 31051 and 31053 OF 2010 =========================** ## **Dated this the 8[th] day of October, 2010** ## **J U D G M E N T** The issue raised in these writ petitions is the correctness of the order passed by the respective Returning Officers rejecting the nominations submitted by the respective petitioners in the elections to the Local Self Government Institutions. Therefore these writ petitions were heard together and are disposed of by this common judgment. 2. Petitioner in WP(C) No.31025/10 is aggrieved by Ext.P5 order passed by the Returning Officer rejecting the nomination submitted by him for election to Ward NO.4(3) of Karunapuram Grama Panchayat on the ground that while submitting the nomination, he did not comply with the requirements of Section 52(5) of the Kerala Panchayat Raj Act. It is contended that the Returning Officer has not applied his mind and that the rejection was in a pre planned manner under the influence of the authorities of the Grama Panchayat. 3. In WP(C) NO.31028/10, the petitioner is aggrieved by **WPC NOs. 31025, 31028, 31030, 31031, 31035, 31045, 31047, 31051 and 31053 OF 2010** **:2 :** the rejection of his nomination to Ward No.II of Ayillur Grama Panchayat. Rejection is on the ground that the person who proposed his name has proposed some other candidates also. It is contended that in the Panchayat Raj Act, there is no restriction that a person proposing a candidate cannot propose more than one candidate. 4. In WP(C) NO.31030/10, the petitioner's nomination to Ward No.13 of Kannukulam Ward of Athirampuzha Grama Panchayat has been rejected on the ground that the declaration was not signed by the petitioner. It is contended that the rejection is in violation of the provisions contained in Section 52 (4) of the Kerala Panchayat Raj Act and the guidelines issued under Section 39 of the Act. 5. In so far as WP(C) NO.31031/10 is concerned, petitioner's nomination to Ward NO.15 of Thrikkoor Grama Panchayat has been rejected by the Returning Officer on the ground that his signature is fake. According to the petitioner, none has objected to the nomination of the petitioner and the allegation that the signature is fake is incorrect. **WPC NOs. 31025, 31028, 31030, 31031, 31035, 31045, 31047, 31051 and 31053 OF 2010** **:3 :** 6. The petitioner in WP(C) No.31035/10 complains that her nomination to Ward No.16 of Kaiparamba Grama Panchayat has been rejected on the ground that a firm, of which she is a partner, is a defaulter to the State Bank of India, Main Branch, Trichur. It is stated that the petitioner has approached this Court disputing the liability by filing WP(C) No. 27996/03 and WA NO.960/07 and that this Court has granted an interim order of stay of recovery. That apart, petitioner states that liability to the Bank does not attract disqualification provided under the Act. Learned Senior Counsel contended that the rejection of the nomination is illegal and malafide. 7. In WP(C) No.31045/10, nomination of the petitioners to Ward Nos.14 and 23 of 4-74 Feroke Grama Panchayat has been rejected on the ground that the first petitioner left blank a column in the nomination paper and the second petitioner though signed failed to put her name in the verification. It is contended that these reasons do not come within Section 55(2) of the Act and Ext.P1 the guidelines issued under Section 39 of the Kerala Panchayat Raj Act. **WPC NOs. 31025, 31028, 31030, 31031, 31035, 31045, 31047, 31051 and 31053 OF 2010** **:4 :** 8. In so far as the petitioner in WP(C) No.31047/10 is concerned, her nomination to Ward NO.IX of Varkala Block Panchayat has been rejected stating that the person who proposed the name of the petitioner is not a voter of the ward. It is stated that it was purely a mistake and that a mistake should have been allowed to be corrected and could not have been relied on to reject the nomination. 9. Petitioner in WP(C) No.31051/10 contended that her nomination to ward No.11 of Thazekode Grama Panchayat was rejected by Ext.P9 on the ground that the petitioner is an employee of a pre primary school and eligible to receive honorarium from the Government and therefore is disqualified in view of Ordinance 25 of 2010. Learned Senior Counsel contended that the petitioner has already resigned from the pre primary school and that she was not receiving any honorarium nor has she received any honorarium. It is stated that this contention is fully supported by Exts.P5, P6 and P7 documents and therefore rejection of the nomination is illegal. 10. Petitioner in WP(C) No.31053/10 submitted nomination **WPC NOs. 31025, 31028, 31030, 31031, 31035, 31045, 31047, 31051 and 31053 OF 2010** **:5 :** to Division No.8 of Mayyanthani of Nilambur Municipality which was rejected by stating that the petitioner is liable to pay Rs.468 to Wandoor Grama Panchayat as per judgment in WP(C) No.13209/09. It is stated that in Ext.P2 judgment, it has been clarified that the petitioner is not liable to pay the amount and therefore the ground of rejection is illegal. 11. On the aforesaid grounds, learned counsel for the petitioners contended that since the rejection of the nominations is patently on unsustainable grounds, this Court should interfere and direct the acceptance of their nominations. 12. Standing counsel appearing for the Election Commission filed a statement impugning the maintainability of the writ petitions mainly relying on the Apex Court judgment in _**Election Commision of India v. Ashok Kumar and others**_ (2000 (8) SCC 216), the judgment of this Court in _**Returning Officer v. Chamiyar**_ (2006(2) KLT 878) and the judgments of this Court in WP(C) Nos.30770 and 30747/10. 13. On facts, in the statement filed, it is stated thus; The elections to the Grama Panchayats in Kerala have been notified by the Government under **WPC NOs. 31025, 31028, 31030, 31031, 31035, 31045, 31047, 31051 and 31053 OF 2010** **:6 :** Section 38 of the Kerala Panchayat Raj Act on 27/09/2010 and the election process has commenced. The election process has reached an advance stage and list of Contesting candidates have been published on 07/10/2010 in Form No.6 under Rule 13 of the Kerala Panchayat Raj (Conduct of Election) Rules as mandated under Section 57 of the Kerala Panchayat Raj Act. The Commission had directed all Returning Officers to furnish the copy of list of contesting candidates in Form NO.6 to the Government presses on 7/10/2010 immediately after the publication of list of contesting candidates to commence the work of printing of ballot papers. The ballot papers, postal ballots, tendered ballots, dummy ballots for electronic voting machines are to be printed in respect of 21612 constituencies in Kerala. By an amendment (Act 31/2009) to Section 49(d) of the Kerala Panchayat Raj Act the time in between the last date for withdrawal of candidature and the date of poll has been reduced and the printing of ballot papers have to be commenced with dispatch. The date of poll is notified as 23/25 October, 2010. The postal ballots have to be despatched in advance to voters who are entitled to cast vote by postal ballots. 14. Counsel also relied on the judgments rendered by this Court dismissing writ petitions of this nature on the ground of maintainability. 15. I have considered the submissions made. 16. A reading of the Apex Court judgment in Ashok Kumar's case shows that, any proceeding calling in question an election, is having the effect of interrupting, obstructing or **WPC NOs. 31025, 31028, 31030, 31031, 31035, 31045, 31047, 31051 and 31053 OF 2010** **:7 :** protracting the election proceedings in any manner, invoking of the judicial remedy has to be postponed till after completing the election proceedings. Admittedly, the election process has commenced with the declaration of elections and from the statement filed, it is obvious that substantial progress has been made by the State Election Commission. Therefore, if any order as sought in these writ petitions is passed, that will certainly interrupt, obstruct and protract the election which is forbidden in view of the provisions contained in Article 243-O(b) of the Constitution of India and the principles laid down by the Apex court in Ashok Kumar's case, which was followed by this Court in the judgment noticed above. 17. Although it is true that the counsel for the petitioners relied on para 32(3) of the Ashok Kumar's case which laid down that action taken and orders issued by the Election Commission are open to judicial review in a case of proved malafides or arbitrary exercise of power, I am not persuaded to think such an examination resulting in the obstructing or protracting the election process is permissible at this stage. Therefore, in my **WPC NOs. 31025, 31028, 31030, 31031, 31035, 31045, 31047, 31051 and 31053 OF 2010** **:8 :** view, even if there is merit in the contentions raised in these writ petitions, the remedy available to the petitioners is to file election petitions. 18. In that view of the matter, I dismiss these writ petitions clarifying that this Court has not expressed anything on the merits of the contentions raised by any one of the parties. Writ petitions are dismissed. ## **ANTONY DOMINIC, JUDGE** Rp