Priya C.P. & George Pious v. Mahatma Gandhi University & 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** **WEDNESDAY, THE 16[TH] DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943 WA NO. 226 OF 2022** **AGAINST THE JUDGMENT IN WP(C) 23895/2021 OF HIGH COURT OF** **KERALA DATED 19.11.2021** ## **APPELLANTS/PETITIONERS:** - **1 PRIYA C.P AGED 24 YEARS CHACKANICAL HOUSE, URULANTHANNI PO, PINAVOORKUDY, ERNAKULAM, PIN - 686681** - **2 GEORGE PIOUS AGED 31 YEARS ARUVELIL HOUSE, MARANGATTUPILLY PO, ELAKAD VILLAGE, MEENACHI TALUK, KOTTAYAM DISTRICT, PIN - 686635** **BY ADV PAUL JACOB (P)** ## **RESPONDENTS/RESPONDENTS:** - **1 MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR UNIVERSITY CAMPUS ROAD, ATHIRAMPUZHA,KOTTAYAM DISTRICT, KERALA, PIN - 686560** - **2 JOINT REGISTRAR - II (ADMIN) (RETURNING OFFICER) MAHATMA GANDHI UNIVERSITY, UNIVERSITY CAMPUS ROAD, ATHIRAMPUZHA, KOTTAYAM DISTRICT, PIN - 686560** **3 VICE CHANCELLOR MAHATMA GANDHI UNIVERSITY UNIVERSITY CAMPUS ROAD, ATHIRAMPUZHA, KOTTAYAM DISTRICT, PIN - 686560** 2 _**W.A.226/2022**_ **4 MOHAMMED ABBAS S SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, M.A. JOURNALISM & MASS COMMUNICATION, INSTITUTE OF COMMUNICATION & JOURNALISM, KUMARANALLOOR, PULLARIKUNNU, M.G.U. CAMPUS, KOTTAYAM, KERALA, PIN - 686041** - **5 NAVEEN K FRANCIS SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, RESEARCH SCHOLAR, SCHOOL OF GANDHIAN THOUGHT AND DEVELOPMENT STUDIES, M.G. UNIVERSITY, ATHIRAMPUZHA, KERALA, PIN - 686560** **6 ASHWIN ANIL SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, B.A-L.L.B, CSI COLLEGE FOR LEGAL STUDIES, SCHOOL ROAD, KANAKKARY, KERALA, PIN - 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, PIN - 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, PIN - 686560** 3 _**W.A.226/2022**_ - **10 ALISHA CHANDINI SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, B.S.C CHEMISTRY, CATHOLICATE COLLEGE, MANNARAMALA, PATHANAMTHITTA, KERALA, PIN - 689645** - **11 GAYATRI M RAJU SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, B. COM, GOVERNMENT COLLEGE, GOVERNMENT COLLEGE ROAD, KATTAPANA, KERALA, PIN - 685515** - **12 SURAJ N. S SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, M.B.A, RURAL ACADEMY FOR MANAGEMENT STUDIES, AYYAMPILLY, VYPIN, KERALA, PIN - 682501** - **13 JITHIN K. J SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, B.A MALAYALAM, MAHARAJA'S COLLEGE, PARK AVENUE ROAD, ERNAKULAM, KERALA, PIN - 682011** - **14 ADARSH SURENDRAN SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, B.A MALAYALAM, D.B COLLEGE,** - **THALAYOLAPARAMBU, KERALA, PIN - 686605** - **15 ARSHO P. M. SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, INTEGRATED M.A. ARCHAEOLOGY & MATERIAL CULTURAL STUDIES, MAHARAJA'S COLLEGE, PARK AVENUE ROAD, ERNAKULAM, KERALA, PIN - 682011** - **16 JAISON JOSEPH SAJAN SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, B.COM-L.L.B., MOUNT ZION LAW COLLEGE, KADAMMANITTA PO, PATHANAMTHITTA, KERALA, PIN - 689649** 4 _**W.A.226/2022**_ **17 YEDHU KRISHANAN P. S SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, B.A. ECONOMICS, ETTUMANOORAPPAN COLLEGE, CHOORAKULANGARA, ETTUMANOOR, KERALA, PIN - 686631 18 SRIJITH RAMESH SENATE MEMBER OF MAHATMA GANDHI UNIVERSITY, B.B.A-L.L.B, CO-OPERATIVE SCHOOL OF LAW, MUTHARAKUNNU, VENGALLOOR PO, THODUPUZHA, KERALA, PIN - 685608** **BY ADV SHRI.SURIN GEORGE IPE, SC, M.G.UNIVERSITY** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 _**W.A.226/2022**_ ## **J U D G M E N T** Dated this the 16[th] day of February, 2022 ## **S. Manikumar, CJ** . Appellants are the writ petitioners. The matter pertains to election to the Senate of Mahatma Gandhi University. Before the writ court, Exhibit P5 Sample Ballot Paper dated 21.10.2021 and Exhibit P9 notification declaring election results numbered as No.3110/1/2020/Election/Election to the Senate, issued by the Joint Registrar II (administrative Section), were sought to be quashed by the writ petitioners, as contrary to the statutory provisions, particularly, Section 43 of Mahatma Gandhi University Act, 1985. 2. Writ petitioners have also sought for a direction to the Vice Chancellor, Mahatma Gandhi University, Kottayam district, Kerala, 3[rd] respondent, to dispose of Exhibits P7 and P8 representations dated 19.10.2021 submitted to the 1[st] respondent, viz., Registrar, Mahatma Gandhi University, Kottayam district, Kerala. 3. After adverting to the rival submissions, Section 43 of the Act, 1985 and Statute 87 of Chapter 44 of the Mahatma Gandhi University Statutes, 1997, a learned Single Judge dismissed the writ petition, on the 6 _**W.A.226/2022**_ grounds, inter alia, that Statute 87 provides for an alternate remedy to prefer an election petition before the competent authority. 4. Being aggrieved, instant writ appeal is filed. 5. Short facts leading to the filing of instant appeal are, the 1[st] appellant is an elected member of the General Council of Mahatma Gandhi University Students Union and a candidate eligible to be a candidate for elections to the University Senate, as provided under Section 43 of the Act, 1985. The law provides for an election to the Senate, by a system of proportional representation, by means of single transferrable vote. 6. Vide Exhibit P5 dated 21.10.2021, the Mahatma Gandhi University issued a new system of ballot paper which provides for 7 ballot papers for 15 seats in one constituency. According to the appellants, it effectively convert the election into 7 transferable votes per voter. 7. It is the case of the appellants that, law is permitting only one ballot paper, in terms of single transferable vote; that the changed balloting system and the consequences are ultravires the Act and its provisions; that the new system kills the right of proportional representation of the minority, and is essentially, a violation of the statute by a statutory authority. 7 _**W.A.226/2022**_ 8. According to the appellants, the statutory authority refused to act despite notice, and alternate remedy is not effective or efficacious. Further, it is submitted that the challenge was not that of an election petition or of disputed facts, but rather a question of law and its implementation. The learned Single Judge dismissed the writ petition as not maintainable and hence, this appeal. 9. Referring to Section 43 of the Mahatma Gandhi University Act, 1985, Mr. Paul Jacob, learned counsel for the appellants, submitted that on 11.10.2021, a Single Ballot Paper Exhibit P1(a) was published. Exhibit P4 dated 27.09.2021 is the final list of candidates. According to him, quite contrary to the procedure contemplated under the statutory provisions, Exhibit P5 ballot paper has been issued. Thereafter, seven different ballot papers were published. 10. According to learned counsel for the appellants, the law provides for election to the Senate by a system of proportional representation, by means of single transferable vote. However, vide Exhibit P5 Sample Ballot Paper, Mahatma Gandhi University has issued a new system of ballot paper, which provides seven ballot papers for 15 seats, sought to be filled up by 8 _**W.A.226/2022**_ way of election, and this new balloting system is contrary to the provisions of the Statute. 11. Referring to the relevant paragraphs in the decision of the Hon'ble Supreme Court in **Ananga Uday Singh Deo v. Ranga Nath Mishra and Others** reported in (2002) 1 SCC 499, learned counsel for the appellants explained as to how, the system of proportional voting has to be done, which according to him, in the instant case, not been followed. Learned counsel further submitted that by this particular process, the representative of minority union is not protected. 12. Learned counsel for the appellants also contended that even if an alternate remedy is provided, it is the duty of the Constitutional Court to ensure that the statutory provisions are adhered to and if there is any failure, interference is required. On the said aspect, reliance has been made to the following decisions: - (i) **Ramachandra Ganpat Shinde and Another v. State of Maharashtra and Others** [(1993) 4 SCC 216]; - (ii) **K.M.Abraham and Others v. Returning Officer and Others** [(1993) 1 KLT 548]; - (iii) **Whirlpool Corporation v. Registrar of Trademarks, Mumbai** [(1998) 8 SCC 1]; - (iv) **Ananga Uday Singh Deo v. Ranga Nath Mishra and Ors.** [(2002) 1 SCC 499]; - (v) **Haribanslal Sahnia and Another v. Indian Oil** 9 _**W.A.226/2022**_ ## **Corporation Ltd. and Others** [(2003) 2 SCC 107]; and - (vi) **Union of India and Another v. Guwahati Carbon Limited** [(2012) 11 SCC 651]. Except the above, no other submission is made. 13. Heard learned counsel for the parties and perused the material available on record. 14. Mahatma Gandhi University Act, 1985 is an Act to establish and incorporate a University at Kottayam by the name Mahatma Gandhi University. Section 43 of the Act, 1985 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.” 15. Statute 87 under Chapter 44 – Elections, of Mahatma Gandhi University Statutes, 1997 reads as under: ## **“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 10 _**W.A.226/2022**_ or of any Statute 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 Vice-Chancellor and as many additional copies as there are respondents shall be produced along with the petition.” 16. Though Mr. Paul Jacob, learned counsel for the appellants, contended that availability of alternate remedy may not be a ground to decline the reliefs sought for, and relied on the decisions referred to, in the foregoing paragraphs, perusal of the impugned judgment makes it clear that after going through the statutory provisions and, in particular, Statute 87 of the Mahatma Gandhi University Statutes, 1997, the learned Single Judge found that sub-clause b(ii) of Clause 1 of the Statute 87, provides for a remedy by way of an election petition, for any non-compliance with the provisions of the Act or of any statute issued thereunder. 17. When the statute itself provides for a remedy, writ court cannot be said to have erred in not interfering with Exhibits P5 and P9. 18. On facts, we are also of the view that appellants have not made out a case for invoking the extraordinary jurisdiction under Article 226 of the Constitution of India, as to why, we should ignore the statutory 11 _**W.A.226/2022**_ provision, and entertain a writ petition. 19. Elections are over and results have been declared, vide Exhibit P9 notification declaring election results dated 21.10.2021. Exhibit P9 reads as under: ## **“MAHATMA GANDHI UNIVERSITY** No. 3110/1/2020/Election/Election to Senate Date : 21-10-2021 ## **NOTIFICATION** Subject:- Reading the Election of Student Representatives to the Mahatma University Senate - Publication of Results - Regarding. - Ref:- 1. M.G. University Act, 1986 Chapter 4 Section 17 Elected Members (12) 2. Notification Dated 02-9-2021 of the same number. 3. Notification Dated 27-9-2021 of the same number. 4. Notification Dated 2-10-2021 of the same number. The following candidates are notified for being selected to the Senate of Mahatma Gandhi University from the Constituency of Student Representatives. ## **Category : Post Graduate Student (One Seat)** |Sl. No.|Name & Address|Male/Female| |---|---|---| |01|Mohammad Abbas S.,<br>M.A. Journalism and Mass<br>Communication Institute of<br>Communication and Journalism<br>Pullarikkunnu.|Male| 12 _**W.A.226/2022**_ ## **Category : Research Student (One Seat)** |Sl. No.|Name & Address|Male/Female| |---|---|---| |01|Naveen K. Francis<br>Research Scholar<br>School of Gandhian Thought and Dev.<br>Studies.<br>M.G. University, Kottayam.|Male| |**Category : Professional College Student (One Seat)**||| |Sl. No.|Name & Address|Male/Female| |01|Ashwin Anil<br>B.A. L.L.B<br>C.S.I College for Legal Studies<br>Kanakkari.|Male| ## **Category : Female Student (Five Seats)** |Sl. No.|Name & Address|Male/Female| |---|---|---| |01|Ajmila Shan<br>M.A. Political Science<br>Maharaja's College<br>Ernakulam.|| |02|Adhithya R.<br>B.S.C. Chemistry<br>St. Xavier's College<br>Vaikom.|| |03|Aiswarya T.S.<br>Master of Tourism and Travel Management<br>School of Tourism Studies<br>M.G.University<br>Kottayam.|| |04|Alisha Chandhini<br>B.S.C. Chemistry<br>Catholicate College<br>Pathanamthitta.|| |05|Gayathri M. Raju<br>B. Com, Govt. College<br>Kattapana.|| 13 _**W.A.226/2022**_ ## **Category : Scheduled Caste Student (One Seat)** |Sl. No.|Name & Address|Male/<br>Female| |---|---|---| |01|Sooraj N.S.<br>M.B.A<br>Rural Academy For Management Studies<br>Kuzhuppilli.|Male| ## **Category : Scheduled Tribe Student (One Seat)** |Sl. No.|Name & Address|Male/Female| |---|---|---| |01|Jithin K. J<br>B.A. Malayalam<br>Maharaja's College,<br>Ernakulam.|Male| ## **Category : General (Five Seat)** |Sl. No.|Name & Address|Male/Female| |---|---|---| |01|Jithin K. J.<br>B.A. Malayalam<br>Maharaja's College,<br>Ernakulam.|Male| |02|Arsho P.M.<br>Integrated M.A.<br>Archeology and Material<br>Cultural Studies<br>Maharaja's College<br>Ernakulam.|Male| |03|Jayson Joseph Sajan<br>B.Com, L.L.B,<br>Mount Siyon Law College<br>Pathanamthitta.|Male| |04|Yadhukrishnan P.S.<br>B.A. Economics<br>Ettumanoorappan College<br>Choorakkulangara.|Male| |05|Sreejith Ramesh<br>B.B.A-L.L.B<br>Corporative School of Law<br>Thodupuzha.|Male| 14 _**W.A.226/2022**_ The official term of the above mentioned persons will be in accordance with the provisions of Section 18 of the Mahatma Gandhi University Act, 1985, and Statute 31 under Chapter 44 of the Statute, 1997. ## Sd/Ashokan N.K., Joint Registrar II (Administrative Section) Administrator 20. Though appellants have sought to quash Exhibit P9, it is trite law that in the matter of elections, exercise of jurisdiction, under Article 226 of the Constitution of India, is limited. In the light of the above discussion, and since an effective alternative remedy is available to challenge the elections for whatever reason, including non-adherence to the statutory provisions of the Act, we are not inclined to interfere with the judgment in W.P(C). No.23895 of 2021 dated 19.11.2021. Accordingly, writ appeal is dismissed. Sd/S. Manikumar, Chief Justice Sd/- Shaji P. Chaly, Judge xxxx sou.