Priya C.P. and George Pious v Mahatma Gandhi University and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **FRIDAY, THE 19[TH] DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943** **WP(C) NO. 23895 OF 2021** ## **PETITIONERS:** 1 PRIYA C.P AGED 24 YEARS D/O MR.C.M.PRAKASH, RESIDING AT CHACKANICAL HOUSE, URULANTHANNI P.O, PINAVOORKUDY, ERNAKULAM-686681. 2 GEORGE PIOUS DISTRICT PRESIDENT, KERALA STUDENTS UNION (KSU), S/O PIOUSKUTTY A V, RESIDING AT ARUVELIL HOUSE, MARANGATTUPILLY P.O, ELAKAD VILLAGE, MEENACHI TALUK, KOTTAYAM DISTRICT,PIN-686635. BY ADV PAUL JACOB (P) ## **RESPONDENTS:** 1 MAHATMA GANDHI UNIVERSITY REPRESENTED BY ITS REGISTRAR, UNIVERSITY CAMPUS ROAD, ATHIRAMPUZHA, KOTTAYAM DISTRICT, KRALA-686560. 2 JOINT REGISTRAR-II(ADMIN) (RETURNING OFFICER), MAHATMA GANDHI UNIVERSITY, UNIVERSITY CAMPUS ROAD, ATHIRAMPUZHA, KOTTAYAM DISTRICT, KRALA-686560. 3 VICE CHANCELLOR MAHATMA GANDHI UNIVERSITY, UNIVERSITY CAMPUS ROAD, ATHIRAMPUZHA, KOTTAYAM DISTRICT, KRALA-686560. 4 MOHAMMED ABBAS. SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, M.A JOURNALISM & MASS COMMUNICATION, INSTITUTE OF COMMUNICATION & JOURNALISM, KUMARANALLOOR, PULLARIKUNNU, M.G.UNIVERSITY CAMPUS, KOTTAYAM, KERALA-686541. **WP(C) NO. 23895 OF 2021** **2** 5 NAVEEN K FRANCIS SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, RESEARCH SCHOLAR, SCHOOL OF GANDHIAN THOUGHT AND DEVELOPMENT STUDIES, M G UNIVERSITY, ATHIRAMPUZHA, KERALA-686560. 6 ASHWIN ANIL SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, BA-L.L.B, CSI COLLEGE OF LEGAL STUDIES, SCHOOL ROAD, KANAKKARY, KERALA-686631. 7 AJMILA SHAN SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, M.A.POLITICAL SCIENCE, MAHARAJA'S COLLEGE, PARK AVENUE ROAD, ERNAKULAM, KERALA-682011. 8 ADITYA R. SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, B.S.C CHEMISTRY, ST.XAVIER'S COLLEGE, KOTHAVARA, COLLEGE ROAD, THALAYAZHAM, KERALA-686607. 9 AISHWARIYA T.S. SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, MASTER OF TOURISM & TRAVEL MANAGEMENT, SCHOOL OF TOURISM STUDIES, UNIVERSITY CAMPUS ROAD, ATHIRAMPUZHA, KERALA-686560. 10 ALISHA GANDHINI SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, B.S.C CHEMISTRY, CATHOLICATE COLLEGE , MANNARAMALA, PATHANAMTHITTA, KERALA-689645. 11 GAYATHRI M RAJU. SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY,, B.COM, GOVERNMENT COLLEGE, GOVERNMENT COLLEGE ROAD, KATTAPANA, KERALA-685515. 12 SURAJ N.S. SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, M.B.A., RURAL ACADEMY FOR MANAGEMENT STUDIES, AYYAMPILLY FOR MANAGEMENT STUDIES, **WP(C) NO. 23895 OF 2021** **3** AYYAMPILLY, VYPIN, KERALA-682501. 13 JITHIN K.J SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, B.A. MALAYALAM, MAHARAJA'S COLLEGE, PARK AVENUE ROAD, ERNAKULAM, KERALA-682011. 14 ADARSH SURENDRAN SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, B.A MALAYALAM, D,B.COLLEGE, THALAYOLAPARAMBU, KERALA-686605. 15 ARSHO P.M. SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, INTEGRATED M.A., ARCHAEOLGY & MATERIAL CULTURAL STUDIES, MAHARAJA'S COLLEGE, PARK AVENUE ROAD, ERNAKULAM, KERALA-682011. 16 JAISON JOSEPH SAJAN SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, B.COM-LLB, MOUNT ZION LAW COLLEGE, KADAMMANITTA P.O, PATHANAMTHITTA, KERALA-689649. 17 YEDHU KRISHNAN P.S. SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, B.A. ECONOMICS, ETTUMANOORAPPAN COLLEGE, CHOORAKULANGARA, ETTUMANOOR, KERALA-686631. 18 SRIJITH RAMESH SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, B.B.A-LLB, CO-OPERATIVE SCHOOL OF LAW, MUTHARAKUNNU, VENGLLOOR P.O, THODUPUZHA, KERALA-685608. BY ADV SHRI.SURIN GEORGE IPE, SC, M.G.UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 23895 OF 2021** **4** ## **JUDGMENT** Ext.P5 the ballet papers and declaration of the result of election to Senate dated 21.10.2021 (Ext.P9) have been challenged in this writ petition. 2. Without disclosing the credentials of petitioner No.2 in paragraph 2 it has been alleged that petitioner is a full-time student, studying for MA (Philosophy) in Maharajas College, Ernakulam affiliated with Mahatma Gandhi University and actively involved in politics and also member of Kerala Students Union (KSU) and eligible to be a candidate for the elected members to the post of the Senate of the university as per the provisions of Section 17(12) of the Mahatma Gandhi university Act, 1985 (hereinafter called ‘Act of 1985’). 3. The University vide notification dated 02.09.2020 notified elections to the 15 elected seats to the University Senate as provided under Chapter VI, Section 43 of the 1985 Act. The Joint Registrar of the University was appointed as the Returning Officer. Sample ballet papers for the benefit of the electorate was issued as Ext.P1(a). With regard to the aforementioned elections **WP(C) NO. 23895 OF 2021** **5** the University published a 'factors that the voters need to know and instructions to follow' regarding the preferential voting system as evidenced from Ext.P3. Petitioner filed her nomination under Scheduled Tribe category and her nomination was cleared as her name was found to be the 3[rd] contestant in ST category. On 19.10.2021 University uploaded the sample ballot paper with the qualified candidates for the senate election on website Ext.P5 and on perusal of the same, it is seen that it was not in accordance with the provisions of Section 43 of the Act as it was multiple ballot papers for different category instead of one ballot paper. 4. Learned counsel appearing on behalf of the petitioners submitted that the aforementioned ballot papers was in deviation from the election system followed by the University from its inception by relying upon a ballot paper for the year 2012-2013 Ext.P6. On acquiring the knowledge of the aforementioned ballot paper, the second petitioner, who is the Vice President of the Kerala Students Union (KSU) made a representation dated 19.10.2021 (Ext.P7) espousing the cause of Union and its members. An official communication of the Union was also issued **WP(C) NO. 23895 OF 2021** **6** to the Vice Chancellor vide Ext.P8. Despite that elections were held on the appointed date and the result has been declared vide Ext.P9. Though Statute 87 under Chapter 44 of Mahatma Gandhi University Statutes, 1997 (hereinafter called ‘1997 Statutes’) provides a remedy of election petition but no detailed evidence or any disputed question of facts are involved and it is in that background jurisdiction of Article 226 of the Constitution of India has been brought into action. It would be a farcical exercise in filing the election petition as it has to be decided by Vice Chancellor, who already had not taken any decision on the representation _ibid_ and by the time it would be decided, the period of electoral members would be over. 5. General Council of Mahatma Gandhi University Student Union is constituted with total 262 members belonging to various students unions, the four in number, as detailed in paragraph 6 of the petition and going by the proportional representation system as per provisions of Section 43 of 1985 Act, the qualifying vote for each contestant would be 262/15+1=16. Each candidate who receive 16 votes would get elected and the priority votes of Students Federation of India would get exhausted after 9[th] **WP(C) NO. 23895 OF 2021** **7** candidate in view of the multiple ballot papers and rest of the seats would be open for minority students union to win. 6. The new ballot system would give preference of the majority, which will repeat with six, first preference goes to all voters, drowning the minority, thereby giving absolute electoral victory. The sole motive is to promote the majority vote now belonging to the Students Federation of India in the General Council of University Students Union. 7. Regarding the maintainability of the writ petition Sri.Paul Jacob relied upon two judgments of Supreme Court in _**Ramachandra Ganapat Shinde and Another**_ v. _**State of Maharashtra and Others**_ [(1993) 4 SCC 216] and _**Ananga Uday Singh Deo**_ v. _**Ranga Nath Mishra and Others**_ [(2002) 1 SCC 499]. 8. On the p _rima facie_ argument of Sri.Paul Jacob of not availing the remedy of election petition Sri.Surin George sought one days’ time. On the adjourned date, statement has been filed by the 1[st] respondent, various objections not only qua maintainability, on merit of the writ petition has been taken, which are summarised hereinbelow. **WP(C) NO. 23895 OF 2021** **8** (i) The present writ petition is not maintainable in the absence of the impleadment of the Registrar of the University. (ii) The 2[nd] petitioner in the above petition is neither the member of the Electoral College ie., General Council of University Union but claims to be an office bearer of student organization affiliated to a political party. Thus he does not have any locus standi to maintain this writ petition for the election of the student representative of Senate conducted by the University as was not on the basis of any political affiliations. (iii) Petitioner No.1 though was a candidate but she abstained from participating the election as she did not cast vote. (iv) As per Section 17 serial No.12 of Chapter 4 of the 1985 Act, 15 members to be elected by the members of General Council or University Union amongst the full-time students of different categories like: 1.One Post Graduate Student 2.One Research Scholar 3.One Student of Professional College ## 4.Five Lady Students 5.One Student belonging to Scheduled Caste **WP(C) NO. 23895 OF 2021** **9** 6.One Student belonging to Scheduled Tribe 7.Five Students from General Category. (v) The sample ballot papers were not uploaded on 19.10.2021 but on 07.10.2021 and the 1[st] petitioner was afforded with sufficient time to seek clarification. Provisions of Chapter 4 Section 17 Serial No.12 of the 1985 Act clearly define the division of various categories of representation of students to the senate. Thus the election was to be conducted using different ballot papers for each division as there is a possibility of not fulfilling the categories for representation defined by the Act, if the same was held on the basis of a single ballot paper. (vi) Chapter VI Section 43 of the Act provides the election of members to the senate and other bodies of the University, stipulating that election shall be held in accordance with the system of proportional representation by means of “Single Transferable Vote” and in accordance with the procedure “prescribed by the statutes”. If the elections were to be conducted in the manner as suggested by the petitioner in the event of electorate marking the first preference for the candidates belonging to general category and then all such **WP(C) NO. 23895 OF 2021** **10** candidates would be securing votes greater than the quota which has been defined under Statute 54 of Chapter 44 of the 1997 Statues. (vii) Statute 55(2) of Chapter 44 of 1997 statues prescribed that a candidate in whose parcel the number of votes on the first preference being counted is equal to or greater than the quota, shall be duly declared elected and if the procedure as suggested by the petitioner is followed, University would have been forced to declare all the candidate belonging to general category as elected whereas the number of the seats in that division of category was only to the extent of five percent. It would create a stalemate in the election process and against the provision of Chapter 4 Section 17 Serial No.12 of the 1985 Act. In the event of using a single ballot the election to division other than general category could have never be filled despite having enough number of contesting candidate on both sides. If separate ballot papers are used aforementioned situation would not have arisen. (viii) In this view of the matter, University opted for a better method by discarding the earlier practice of conducting the **WP(C) NO. 23895 OF 2021** **11** election with one single ballot paper. Moreover, neither any provisions of the Act nor statutes of the University contains any provisions with a specific direction to prepare one single ballot paper for different category of candidates. (ix) Petitioner misinterpreted the term ‘Single Transferable Vote’ considering it as marking preference in one ballot paper without taking into consideration the division of categories as defined in the Act. (x) ‘Single Transferable Vote’ means an electoral system of proportional representation in which a person’s vote can be transferred to a second or further competing candidate according to the voter’s stated order of preference if the candidate of first choice is eliminated during the succession of counts or has more votes than are needed for election. Such practice would not mean that a voter would get chance to more than one vote. (xi) The system of proportional representation by means of single transferable vote is ensured both in the case of categories of posts ‘having one seat’ as well as having ‘two or more seats’. (xii) Petitioner had an efficacious remedy of election petition under Statute 87 of Chapter 44 and the aforementioned provision **WP(C) NO. 23895 OF 2021** **12** also take care of a ground of non-compliance of the provisions of the Act or any statutes issued thereunder. Thus it is not disputed that all the pleas as arisen in the petition can be cured by filing the election petition and the procedure prescribed as in Statute 89 of 1997 Statutes. 9. I have heard the learned counsel for the parties and appraised the paper book. 10. I would be dealing with the objection raised by the respondents qua maintainability of the writ petition in not availing the remedy of election petition. To answer the aforementioned objection it would be necessary to extract the provisions of Statute 87 of Chapter 44 of 1997 statutes: ## 87. **Presentation of election petition:-** 1. Any election petition calling in question any election may be presented within seven days of the declaration of the result of the election by any candidate at such election. - a. one or more of the grounds, specified in subsection (1) of Section 34 of the Act; or - b. on the ground that the result of the election has been materially affected- - i) by the improper reception or refusal of a vote; or - ii) by any non-compliance with the provisions of the Act or of any Statute **WP(C) NO. 23895 OF 2021** **13** issued thereunder; or - C. on the ground that the nomination of any candidate has been wrongly rejected or the nomination of the successful candidate or of any other candidate who has not withdrawn his candidature has been wrongly accepted. 2. One authenticated copy of the petition and the Annexure thereto, if any, for the use of the ViceChancellor and as many additional copies as there are respondents shall be produced along with the petition. 11. On perusal of sub clause (ii) and (b) of Clause 1 of statute 87, election petition is also maintainable on the ground of noncompliance with the provisions of the Act or any statutes issued thereunder. It is the case of the petitioner that there has not been compliance of provisions of Section 43 of 1985 Act. The same reads as under: **43. Election of members to the Senate [xxxx] and other bodies of the University:-** The election of members to the Senate, [xxx] and other bodies of the University shall be held in accordance with the system of proportional representation by means of the single transferable vote and in accordance with the procedure prescribed by the Statutes, and the voting at such election shall be by secret ballot. 12. It would be apt to re-produce serial No.12 of Section 17 of 1985 Act: **WP(C) NO. 23895 OF 2021** **14** (12). Fifteen members elected by the members of the General Council of the University Union from among full-time students, of whom one shall be a post graduate student, one shall be a research scholar, one shall be the student of a professional college, five shall be lady students, one shall be a member of a Scheduled Caste and one shall be a member of a Scheduled Tribe. 13. On reading of the plain and simple language of both the aforementioned provisions, it is evident that the election of the members of the Senate referred to at Serial No.12 of Section 17 and other bodies of University shall be held in accordance with the system of proportional representation by means of Single Transferable Vote and in accordance with the procedure prescribed by the statutes and voting of such election shall be held by the secret ballot paper. 14. Alleged noncompliance of the aforementioned provision has been taken care of by sub-clause 2(i)(b) of clause 1 of the Statute 87 of the 1997 statute. Be that as it may. This Court does not have the expertise to go into details and merit of election dispute regarding the representation of the candidates belonging to different categories as per the division into parcels according to first preference prescribed in statute 53 and assignment of quota (statute 54) which reads thus: **WP(C) NO. 23895 OF 2021** **15** 53. Division into parcels according to first preference:- After the invalid ballot papers, if any, have been rejected, the remaining papers shall be divided into parcels according to the first preferences recorded for each candidate and the number of papers in each parcel noted and credited to the concerned candidates' account. 54.Quota:- The number of papers in all the parcels shall then be added together and the total divided by a number exceeding by one the number of vacancies to be filled by election and the quotient increased by one shall be the number sufficient to secure the return of candidates, hereinafter called the "quota". 15. The procedure of giving of vote by preference is synonymous to the elections of the various Bar Councils of the country. On perusal of the ballot papers Ext.P5 it is evident that the name of the candidate belonging to general category, scheduled caste, scheduled tribe, representatives of the students etc., as defined in serial No.12 of section 17 were prepared. It is also a matter of record that the petitioner No.1 did not cast the vote and failed from participating the election despite being a candidate and petitioner at the behest of the second respondent having an affiliation with the union is not maintainable as the election is not based upon any affiliation to any students union with any political parties. The stand of the respondents in **WP(C) NO. 23895 OF 2021** **16** justifying secret ballot papers by carving out the divisions of the following categories: |wing categories:||| |---|---|---| |**Division of various categories for**<br>**representation of students to**<br>**Senate**|**No.of**<br>**seats**|**No. of**<br>**candidates**| |Post Graduate Student|One|02| |Research Scholar|One|02| |Student of Professional College|One|03| |Lady Students|Five|09| |Student belonging to Scheduled<br>Caste|One|04| |Student belonging to Scheduled Tribe|One|03| |Students from General Category|Five|11| |**Total no. of candidates**||**34**| 16. In my view it is not in the domain of this Court to ponder upon the adjudication of the dispute. The Supreme Court in _**Ramachandra Ganapat**_ (supra) while dealing with controversy on elections to the committee of a co-operative society in the state of Maharashtra wherein the orders of division bench of the High court of Mumbai was modified in respect of writ petition filed by two members of the society. The aforementioned writ petition filed in the High court of Mumbai by members of the society on its behalf was to issue a writ of mandamus to the District Collector and Election Officer to conduct **WP(C) NO. 23895 OF 2021** **17** election to the committee after the expiry of the term of the members and complete the same within a minimum period and by consent of the society. Division Bench by its order directed the society to commence the process of election as to finalising the list of voters by fixing a date and thereunder the District Collector was ordered to take suitable steps for holding the election. Considered that another writ petition was also filed by different sets of persons to hold election on the basis of final voters list and placing on record the concerned minute; wherein directions were issued to the respondent to submit a provisional list of the voters with a further direction to the Collector to complete by finalization of the list as per the applicable Rules and pronounce the election programme and thereafter the Election Officer requested the society to submit a fresh provisional list and becoming aware of the order and fact that another writ petition was filed to modify the previous order for seeking directions to the Election Officer to hold election of the committee on the basis of final voters list and for setting aside the consequential order. Dismissal of writ petition by the Division Bench _in limine_ and a special leave petition was preferred in the Supreme Court. **WP(C) NO. 23895 OF 2021** **18** Considered objection as to whether under Article 226 of the Constitution of India the High Court could give directions to the contrary to the statute mandate ie., whether an order was liable to be judicial review by independent procedure under Article 226 of the Constitution of India and if so, under what circumstances and to what extent. It is in that background the Supreme Court held that though the provisions of the Maharashtra Co-operative Societies Act provide a remedy of election petition and specified option was empowered to decide the election dispute expeditiously and this decision would be final and the writ petition would not be maintainable. But since a direction was issued by the High Court for concluding the process of election on the basis of voters list it was only the High Court which could have corrected the error by exercising the power under Article 226 of the Constitution of India to prevent the abuse of such judicial process. 17. In my view, from the contents of the facts and the observations recorded in the judgment, nowhere it has been held that the powers of the High Court under Article 226 of Constitution of India can be entertained for deciding an election **WP(C) NO. 23895 OF 2021** **19** dispute for which there is a alternative and efficacious remedy. 18. The other judgment cited is with regard to the merits of the matter which this Court refrain to adjudicate upon. The submissions as noticed above in my view would not be maintainable as for even noncompliance of provisions of section 43 and not in accordance with serial No.12 of Section 17, grounds of challenge as provided in statute 87. 19. Sri.Paul Jacob at this stage tried to demonstrate the effect of multiple ballot papers viz.a.viz. the non-ballot paper by referring to provisions of statutes 53 and 54 regarding division and quota. This court specifically raised the query for supporting the arguments in the absence of the number of the votes received by each of the candidates. Counsel sought time to place on record of the same. This Court rejected the aforementioned contention on the premise that it does not have the expertise to go into the merit of the matter. The petitioner would also have ample opportunity to demonstrate viz.a.viz. the noncompliance of the provisions of statute and it is a fact by leading an evidence in case chooses to file any election petition. As an upshot of my findings, I am of the view that the writ **WP(C) NO. 23895 OF 2021** **20** petition is not maintainable. Petitioners have an efficacious remedy of election petition as per the provisions of statute 87 of the Chapter 44 of the 1977 statutes. Accordingly writ petition is dismissed. Sd/- **AMIT RAWAL JUDGE** nak **WP(C) NO. 23895 OF 2021** **21** ## **APPENDIX OF WP(C) 23895/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTIFICATION ISSUED BY THE 2ND RESPONDENT NUMBERED AS 3110/1/2020/ELECTION/ELECTION TO SENATE DATED 02.09.2020. Exhibit P1(a) TRUE COPY OF THE SAMPLE BALLOT PAPER DATED 11.10.2021 WITH ENGLISH TRANSLATION. Exhibit P2 TRUE COPY OF THE NOTIFICATION ISSUED BY THE 2ND RESPONDENT NUMBERED AS NO.3110/1/20208ELECTION/ELECTION TO SENATE DATED 02.10.2021. Exhibit P3 TRUE COPY OF THE NOTICED DATED 10.09.2021 WITH ENGLISH TRANSLATION. Exhibit P4 TRUE COPY OF THE CANDIDATES LIST ISSUED BY THE 2ND RESPONDENT NUMBERED AS NO.311081/2020/ELECTION/ELECTION TO SENATE DATED 27.09.2021 WITH ENGLISH TRANSLATION. Exhibit P5 TRUE COPY OF THE SAMPLE BALLOT PAPER DATED 21.10.2021 WITH ENGLISH TRANSLATION. Exhibit P6 TRUE COPY OF THE BALLOT PAPER FOR THE YEAR 2012-2013. Exhibit P7 TRUE COPY OF REPRESENTATION DATED 19.10.2021 ISSUED BY THE 2ND PETITIONER TO THE 1ST RESPONDENT WITH ENGLISH TRANSLATION. Exhibit P8 TRUE COPY OF REPRESENTATION DATED 19.10.2021 ISSUED BY THE 2ND PETITIONER TO THE 1ST RESPONDENT WITH ENGLISH TRANSLATION. Exhibit P9 TRUE COPY OF THE ELECTION RESULTS NUMBERED AS NO.3110/1/2020/ELECTION/ELECTION TO SENATE DATED 21.10.2021 WITH ENGLISH TRANSLATION.