PREEPTHEY RAJ v. STATE ELECTION COMMISSION KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942** ## **WP(C).No.25810 OF 2020(A)** ## **PETITIONER:** **PREEPTHEY RAJ, AGED 29 YEARS D/O.R.JAYARAJAN, RESIDING AT RAILWAY QUARTERS, 133 D, SOUTHERN RAILWAY, ERNAKULAM DIST., KERALA PIN-682 016** **BY ADVS. SRI.N.ANILKUMAR SRI.SINU.G.NATH SHRI.TONY GEORGE THOMAS** ## **RESPONDENTS:** **1 STATE ELECTION COMMISSION KERALA JANAHITHAM, T.C. NO.27/6(2), VIKAS BHAVAN, THIRUVANANTHAPURAM. PIN-695 O33** **2 DISTRICT ELECTION OFFICER (DISTRICT COLLECTOR)** **ERNAKULAM, KAKKANADU, ERNAKULAM DIST. KERALA PIN-682030** **SRI. PAUL ABRAHAM VAKKANAL, GP SRI. MURALI PURUSHOTHAMAN, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ..2.. ## W.P.(C) No.25810 of 2020 ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **W.P.(C) No.25810 of 2020** ## **-----------------------------------------------** ## **Dated this the 25th day of November, 2020** ## **J U D G M E N T** The petitioner has submitted nomination for the election to Kochi Municipal Corporation from Division No.49. The nomination submitted by the petitioner has been rejected by the Returning Officer as per Ext.P3 order holding that since the petitioner has preferred nomination for election from another division also, her nomination is liable to be rejected in terms of the proviso to Section 107 of the Kerala Municipality Act. The case of the petitioner is that though she has submitted nomination for the election from Division No.32 also, the same was also rejected on the very same ground. According to the petitioner, since Division No.32 is a reserved division and since the petitioner was not eligible to contest the election from the said division, her nomination for election from Division No.49 ought to have been accepted by the Returning W.P.(C) No.25810 of 2020 ..3.. Officer. The petitioner, therefore, challenges Ext.P3 decision of the Returning Officer on that ground in the writ petition. 2. Heard the learned counsel for the petitioner as also the learned Standing Counsel for the State Election Commission. 3. The learned Standing Counsel for the State Election Commission has raised a preliminary objection as to the maintainability of the writ petition. According to him, in the light of Article 243-O(b) of the Constitution, the writ petition is not maintainable. 4. Article 243-O of the Constitution reads thus: ## “ **243-O. Bar to interference by Courts in electoral matters.** — ## Notwithstanding anything in this Constitution,— (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any court; (b) no election to any Panchayat shall be called in question except by an election petition presented to such W.P.(C) No.25810 of 2020 ..4.. authority and in such manner as is provided for by or under any law made by the Legislature of a State.” It is seen that the question whether the jurisdiction of the High Court under Article 226 of the Constitution could be invoked to challenge an improper rejection of a nomination paper, while the election is in progress, has been answered in the negative by a Constitution Bench of the Apex Court in **N.P. Ponnuswami v. The Returning** ## **Officer** , **Namakhal Constituency, Namakkal, Salem Dist** [AIR 1952 SC 64], in the context of the _pari materia_ provision in Article 329(b) of the Constitution, holding that irregularities vitiating the election cannot be made the subject matter of a dispute before any court while the election is in progress. In **Mohinder Singh Gill and** ## **another v. The Chief Election Commissioner** , **New Delhi and** **others** [AIR 1978 SC 851], another Constitution Bench of the Apex Court however demarcated the area which is available for interference by the High Court under Article 226 of the Constitution. The relevant passage of the judgment dealing with the same reads thus: "But what is banned is not anything whatsoever done or W.P.(C) No.25810 of 2020 ..5.. directed by the Commissioner but everything he does or directs in furtherance of the election, not contrary wise. For example, after the President notifies the nation on the holding of elections under S.15 and the Commissioner publishes the calender for the poll under S.30, if the latter orders Returning Officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents, is that order immune from immediate attack. We think not. Because the Commissioner is preventing anelection, not promoting it and the Court's review of that order will facilitate theflow, not stop the stream. Election, wide or narrow be its connotation, means choice from a possible plurality monolithic politics not being our genius or reality, and if that concept is crippled by the Commissioner's act, he holds no election at all." In **Manda Jaganath v. K.S.Rathnam and thers** [AIR 2004 SC 3600], after referring to **Mohinder Singh Gill,** the Apex Court held, in the context of a decision taken by the Returning Officer in declining to allot to a candidate the symbol reserved for his political party, that the question whether the Returning Officer is justified in taking such a decision is not a matter for the High Court to decide in exercise of its writ jurisdiction. Paragraph 12 of the judgment in the said case dealing with the said conclusion reads thus: W.P.(C) No.25810 of 2020 ..6.. **12** . In our opinion, whether the Returning Officer is justified in rejecting this Form B submitted by the first respondent herein or not, is not a matter for the High Court to decide in the exercise of its writ jurisdiction. This issue should be agitated by an aggrieved party in an election petition only. After arriving at the conclusion aforesaid, referring to the passage from **Mohinder Singh Gill** extracted above, the Apex Court has explained in **Manda Jaganath,** the scope of interference under Article 226 of the Constitution thus: "Of course, what is stated by this Court hereinabove is not exhaustive of a Returning Officer's possible erroneous action which are amenable to correction in the writ jurisdiction of the Courts. But the fact remains that such errors should have the effect of interfering in the free flow of the scheduled election or hinder the progress of the election which is the paramount consideration. If by an erroneous order conduct of the election is not hindered then the Courts under Art.226 of the Constitution should not interfere with the orders of the Returning Officers, remedy for which lies in an election petition only." In the light of Article 243-O(b) of the Constitution and the decisions of the Apex Court referred to above, I am of the view that only if the impugned decision/action has the effect of interfering in the free flow of the scheduled election or hinder the progress of the election, W.P.(C) No.25810 of 2020 ..7.. this court would be justified in entertaining the writ petition. The case on hand does not satisfy the aforesaid requirement of law. An adjudication as to the eligibility of the petitioner cannot be undertaken in this proceedings while the election is in progress. The writ petition, in the circumstances, is devoid of merits and the same is accordingly dismissed. It is, however, made clear that this judgment will not preclude the petitioner from challenging the decision impugned in the writ petition in an election petition instituted in accordance with the relevant statute. ## **Sd/-** ## **P.B.SURESH KUMAR, JUDGE.** ds W.P.(C) No.25810 of 2020 ..8.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CASTE CERTIFICATE ISSUED BY THE TAHSILDAR, KANAYANNUR TALUK** **EXHIBIT P2 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT** **EXHIBIT P3 TRUE COPY OF THE PRINTOUT OF THE SECOND PAGE OF FORM - 2 NOMINATION PERTAINING TO WARD NO.32, VADUTHALA EAST.** **EXHIBIT P4 TRUE COPY OF THE PRINTOUT OF THE SECOND PAGE OF FORM - 2 NOMINATION PERTAINING TO WARD NO.49, VYTTILA.**