R. Pushpadas v. Oachira Parabrahma Temple and The Chief Returning Officer, Oachira Parabrahma Temple

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 WP(C).No. 13137 of 2008(L) -------------------------I.A.NO.331/08 IN OS.1/2006 of I ADDL. DISTRICT COURT, KOLLAM .................... PETITIONER: ------------ R.PUSHPADAS, S/O.RAGHAVAN, RESIDING AT 'CHAITHANYA', CHERAVALLY, KAYAMKULAM P.O., ALAPPUZHA 690 502. BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENTS: ------------- ## 1. OACHIRA PARABRAHMA TEMPLE, REPRESENTED BY ITS SECRETARY, OACHIRA P.O., KOLLAM. ## 2. THE CHIEF RETURNING OFFICER, OACHIRA PARABRAHMA TEMPLE, OACHIRA P.O., KOLLAM. BY ADV. SRI.N.D.PREMACHANDRAN FOR R1 SRI.D.AJITHKUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX Ext.P1:- True copy of the application filed by the petitioner as I.A.No.331/2008 dated 10.3.2008. Ext.P2:- True copy of the objection filed by the second respondent to the application dated 19.3.2008. Ext.P3:- True copy of the order in I.A.No.331/2008 in O.S.No.1/2006 on the file of the Court of the First Additional District Judge, Kollam dated 28.3.2008. Ext.P4:- True copy of the election notification published by the second respondent dated 9.4.2008. /true copy/ P.S. To Judge ## **M.SASIDHARAN NAMBIAR,J.** =========================== W.P.(C) NO.13137 OF 2008 =========================== Dated this the 6th day of June, 2008 ## JUDGMENT This petition is filed under Article 227 of the Constitution of India challenging Ext.P3 order with regard to the confirmation of the voters list regarding exclusion of 50 voters and inclusion of 83 voters. Petitioner is a candidate for the election for Cheravally Kara. He filed Ext.P1 petition before the court to modify the voters list in respect of inclusion of 83 voters and exclusion of 50 voters. Case of the petitioner is that 83 persons who were included and shown as A schedule to Ext.P1 are not residents of Cheravally Kara, and Returning Officer should not have included them in the voters list of Cheravally Kara. Petitioner also contended that Returning Officer excluded 50 persons from the voters list of Ezhava community of the said Kara without any basis and therefore voters list is to be modified, curing the defect. W.P.(C)13137/2008 2 Returning Officer filed Ext.P2 statement wherein it was stated that 83 names shown in A schedule were included as those persons produced ration cards and Returning Officer was satisfied that they are residents of Cheravally Kara. Similarly regarding the exclusion of 50 Ezhava voters Returning Officer stated that out of the said voters Sl.No.30 was not excluded and Sl.No.16 and 17 were excluded as their names are also shown in the voters list and it was only a double entry and that too on the application filed by them. It was also stated that similarly persons shown as members1,2,3,5,10,11,12,18,21,22,23,24,25,29,35,36, 38,39,,40,42, 43,44,45,46,48,49, 50 were excluded as notice sent by post was returned with the endorsement no such addressee. It was also stated that the others were excluded as their names already figured in the voters list and the entries are double entries. Under Ext.P3 order learned District Judge rejected the objection with regard to the inclusion of 83 voters stating that the W.P.(C)13137/2008 3 report submitted by the Returning Officer shows that they produced ration cards to show that they hail from Cheravally Kara and some of those voters produced their ration cards in open court and therefore their names are not fraudulently entered as alleged. With regard to the exclusion of the 50 voters, court accepted the explanation of Returning Officer and rejected Ext.P1 petition. Ext.P3 order to that extent is challenged in this petition filed under Article 227 of the Constitution of India. 2. In the petition an impleading petition was filed by a third party to implead him as third respondent. I do not find that presence of the said person is necessary for a proper disposal of the petition. Therefore the petition is dismissed. 3. Learned senior counsel appearing for petitioner as well as learned counsel who represent first respondent was heard. 4. The argument of the learned senior counsel is that inspite of specific objections that 83 W.P.(C)13137/2008 4 voters shown as A schedule in Ext.P1 are not residents of Cheravally Kara, court did not conduct any enquiry and rejected the objection only based on the report submitted by the Returning Officer. Learned senior counsel pointed out that in Ext.P2 objection Returning Officer has stated that court is conducting an enquiry whether those 83 persons are residents of Cheravally Kara and based on that finding of the court their names could either be included or excluded and no such enquiry was conducted and therefore Ext.P3 order is not sustainable. Learned senior counsel also argued that apart from accepting Ext.P2 report and rejecting the objection with regard to the exclusion of 50 voters from the voters list of Ezhavas of that Kara, learned District Judge did not consider whether in fact notices were issued to those excluded 50 persons and if so in what address and whether those notices were in fact served on them and as the objection was not properly considered by the court learned District Judge is W.P.(C)13137/2008 5 to be directed to consider Ext.P2 objection afresh. Learned counsel appearing for first respondent relying on the decision of this court in **Kottappady** ## **Service Co-op.Bank v. Asst.Registrar (1994(2) KLT** **506)** argued that once an election process has started Court will not interfere with the election. It was also argued that petitioner did not adduce any evidence to prove the objection raised in Ext.P2 and in such circumstance, Writ Petition is only to be dismissed. Learned senior counsel relying on the decision of this Court in ## **Govindan v. Dy.Registrar of Co-operative Societies** **(1983 KLT 1038)** argued that election should be conducted only on a valid voters list which is fundamental to any election and as Ext.P1 objections were not considered by the court, and election is being conducted at the instance of the court, Ext.P3 is to be set aside. 5. On hearing the learned counsel and going through Ext.P1 petition, P2 explanation of the W.P.(C)13137/2008 6 Returning Officer as well as Ext.P3 order, it is clear that the objections raised by the petitioner were not properly considered by the learned District Judge. Without a proper and valid voters list there cannot not be a valid election as it is a sine qua non for any election. The objection raised by the petitioner is two fold. One is regarding inclusion of ineligible persons and other exclusion of eligible persons. Though learned District Judge accepted Ext.P2 and rejected the objection with regard to the inclusion of 83 names, Ext.P2 itself shows that Returning Officer has stated that court is conducting an enquiry and the voters list could be modified subject to the result of that enquiry. Ext.P3 order shows that District Judge did not consider the objection on the question whether the said 83 voters are valid voters or not. Similarly though, for accepting the rejection of 50 voters learned District Judge relied on the explanation of the Returning Officer, question whether notices were issued to W.P.(C)13137/2008 7 those 50 persons and whether notices were served on them were not considered by the learned District Judge. In such circumstance, Ext.P3 order to the extent of rejection of Ext.P1 petition is set aside and the learned District Judge is directed to consider Ext.P1 afresh and pass appropriate order in accordance with law. The election to Cheravally Kara is to be conducted only after passing the order in I.A.331/2008. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- ## M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006