SASI V C v. Kerala State Election Commission and Others

W.A. No. 1548/2020 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & ## THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 27TH DAY OF NOVEMBER 2020 / 6TH AGRAHAYANA, 1942 ## WA.No.1548 OF 2020 AGAINST THE JUDGMENT IN WP(C) 25766/2020(U) OF HIGH COURT OF KERALA ## APPELLANT/PETITIONER: SASI V C AGED 44 YEARS S/O. CHATHAPPAN, RESIDING AT VADAKKECHERI, ANAMANGAD P.O., PERINTHALMANNA, MALAPPURAM DISTRICT-679 357. BY ADVS. SHRI.THOMAS ABRAHAM SMT.MERCIAMMA MATHEW SRI.ASWIN.P.JOHN SRI.R.ANANTHAPADMANABAN SHRI.THAYYIB SHA P.S. ## RESPONDENTS/RESPONDENTS: 1 KERALA STATE ELECTION COMMISSION, KERALA JANAHITHAM TC-27/6(2), VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033, REPRESENTED BY THE STATE ELECTION COMMISSIONER. 2 THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, MALAPPURAM, PIN-676 505. 3 THE RETURNING OFFICER TO THE ELECTION TO THE GRAMA PANCHAYATH, G-43, ALIPARAMBA AND ASSISTANT DISTRICT INDUSTRIES OFFICER, PERINTHALMANNA-679 322. 4 THE SECRETARY ALIPARAMBA GRAMA PANCHAYATH, PERINTHALMANNA, MALAPPURAM-679 322. R1 & R3 BY SRI.MURALI PURUSHITHAMAN, SC FOR R1 & R3 R2 BY SRI.ARAVIND KUMAR BABU,SR GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. No. 1548/2020 : 2 : ## **Dated this the 27[th] day of November, 2020.** ## **JUDGMENT** ## **SHAJI P. CHALY, J.** This writ appeal is filed by the petitioner in W.P.(C) No. 25766 of 2020 against the judgment of the learned single Judge dated 25.11.2020 dismissing the writ petition and declining the reliefs sought for by the appellant to quash Ext. P4 order passed by the Returning Officer, Aliparamba Grama Panchayat rejecting the nomination submitted by the appellant to Ward No.2 of Anamangad constituency on the ground that the appellant has not signed in the column to be filled in as Scheduled Castes/Scheduled Tribes. It is, thus, challenging the legality and correctness of the judgment, this appeal is preferred. 2. The learned single Judge, after taking into account Article 243-O of the Constitution of India dealing with bar to interference by Courts in electoral matters to the Panchayat and following the principles of law laid down by the Apex Court in _**N.P. Ponnuswami v.**_ _**The Returning Officer, Namakkal Constituency, Namakkal, Salem District**_ [AIR 1952 SC 64] and _**Mohinder Singh Gill and**_ W.A. No. 1548/2020 : 3 : ## _**another v. The Chief Election Commissioner, New Delhi and**_ _**others**_ [AIR 1978 SC 851] refused to entertain the writ petition holding that the sustainability or otherwise of Ext. P4 order passed by the Returning Officer cannot be considered in writ proceedings while the election is in progress and that the writ petition is devoid of merits, and therefore, left open the liberty of the appellant to challenge the decision impugned in an Election Petition instituted in accordance with the relevant statute. 3. The formidable contention advanced by the appellant is that as per Section 55(4) of the Kerala Panchayat Raj Act, 1994 (hereinafter called 'the Act, 1994), the Returning Officer shall not reject any nomination paper on the ground of any defect which has not of a substantial nature. The sum and substance of the contention advanced by the learned counsel for the appellant is that the provision clearly establishes that a minor defect like the instant one, which does not, in any way, affect the validity of the candidature of the appellant, cannot be used by the Returning Officer for the rejection of the nomination paper. It was also submitted that in order to identify that the appellant is a Scheduled Caste, he has produced necessary certificate from the appropriate statutory authority and therefore, W.A. No. 1548/2020 : 4 : mere absence of a signature in the declaration column is not at all a major or substantive defect so as to reject the same. It was further submitted that while a nomination is submitted, the Returning Officer was duty bound to take into account the defects, if any, in the nomination and issue necessary guidance to the candidates to rectify the defects and then permit re-submit the same. It was also pointed out that since the appellant belongs to a socially and financially backward section of the society, he is entitled for judicious consideration as guaranteed under the Constitution of India and the hyper-technical objections like the instant one can result only in the deprival of the legitimate democratic right of the appellant. Therefore, he sought interference of the writ Court. 4. The learned counsel for the State Election Commission had advanced arguments based on the statement submitted before the learned single Judge, that since the election process is in progress, the writ petition is not maintainable, in view of the bar of jurisdiction contained under Article 243O(b) of the Constitution of India. The scrutiny of nomination was held on 20.11.2020 and the last date for withdrawal of candidature and allotment of symbols was on 23.11.2020 and the Returning Officer was bound to prepare and W.A. No. 1548/2020 : 5 : publish the list of contesting candidates by 3 p.m. on 23.11.2020. Immediately thereafter, the list of contesting candidates are to be furnished to the Government Press immediately after the publication of the list of contesting candidates to commence the work of printing of ballot papers. Various other procedures to be adopted by the Returning Officer and the State Election Commission are also narrated, and it was predominantly submitted that the appellant has got a clear remedy available under the provisions of the Act, 1994 to challenge the election in accordance with law and he is not entitled to invoke the jurisdiction of a writ court under Article 226 of the Constitution of India 5. We have heard learned counsel for the appellant Sri. Thomas Abraham, Sri. Murali Purushothaman for the State Election Commission and Sri. Aravind Kumar Babu, learned Senior Government Pleader, and perused the pleadings and materials on record. 6. On assimilation of facts, what we could gather is that the nomination was rejected, since the appellant has not affixed his signature in the column provided in the nomination declaring that he belongs to the Scheduled Caste/Scheduled Tribe community. The case put forth by the learned counsel for the appellant is that it is a minor defect which could be rectified and sufficient opportunity ought to have W.A. No. 1548/2020 : 6 : been provided for the same. Having not done so, the Returning Officer has not discharged his duty. 7. Therefore, the question emerges for consideration is whether the learned single Judge was right in declining interference in the rejection of ballot papers. Article 243-O of the Constitution of India deals with the bar to interference by courts in electoral matters and clause (b) therein clearly specifies that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of a State. Therefore, it is clear that whenever a law is made by the State in regard to the conduct of the election to the Panchayat, whatever happens in the process of election can only be challenged by the manner in which the procedure is prescribed under any law. 8. Chapter X of the Act, 1994 deals with the disputes regarding election. Section 87 thereto makes it imperative that no election shall be called in question except by an election petition presented in accordance with the provisions of Chapter X. Likewise, Section 102 deals with the grounds for declaring elections to be void and sub-Section (1)(c) makes it clear that if any nomination has been improperly rejected, it is a ground to challenge the election after the elections are over. W.A. No. 1548/2020 : 7 : 9. Therefore, reading together the provisions of Constitution of India and the Act, 1994, it is unequivocal that there is a clear remedy provided under law to challenge any illegality consequent to the rejection of the nomination submitted by a candidate. Nowhere under law, it is stated that if the rejection of nomination is due to a minor defect, it could be rectified by the Returning officer. Nobody can dispute the fact that the submission of nomination papers is part of the election process and therefore, it is imperative under law that action could be challenged only by submitting an election petition as mandated by the Constitution of India and the laws as discussed above. 10. However learned counsel for the appellant had submitted that even if there is a remedy provided under the Act, 1994 to challenge he elections, that will not detain the writ court to exercise the power conferred under Article 226 of the Constitution of India if there is patent illegality and arbitrariness on the part of the Returning O0fficer. We do not think, that is a correct proposition mooted by the learned counsel for the appellant, in view of the judgment of the Apex Court in _**N.P. Ponnuswami**_ (supra) since the election process has started, consequent to the election notification issued by the State W.A. No. 1548/2020 : 8 : Election Commissioner and the proceedings have progressed into a stage where the final list of contesting candidates were published and printing of the ballot papers have started. Therefore, the only effective remedy available to the appellant is to resort to the procedure contemplated under law. Of course, the judgments as above were rendered by the Apex Court in the backdrop of Article 329(b) of the Constitution of India dealing with elections to the parliament as well as the State Legislature. But, it is well settled that elections to any democratic body shall follow the prescriptions and principles contained under the Representation of Peoples Act also, in order to maintain the discipline, punctuality and time bound action in the election process. Though the learned counsel for the appellant made a faint attempt to put forth the law laid down by the Apex Court in _**Manda Jagannath v. K.S. Rthnam and others**_ [AIR 2004 SC 3600], we are of the view that the subject issue dealt with thereunder was in respect of the election symbol. Moreover, the judgments of the Apex Court in _**N.P. Ponnuswami**_ and _**Mohinder Singh Gill**_ are rendered by Constitution Benches of superior strength of 6 and 5 respectively and therefore we are bound to follow the law laid down accordingly. 11. Taking into account the above factual and legal aspects, we W.A. No. 1548/2020 : 9 : do not think, the appellant has made out a case justifying interference in the judgment of the learned single Judge, there being no illegality, liable to be interfered with in an intra-court appeal filed under Section 5 of the Kerala High Court Act, 1958. Upshot of the above discussion is that the writ appeal fails and accordingly it is dismissed. **S. MANIKUMAR, CHIEF JUSTICE.** **SHAJI P. CHALY, JUDGE.** _Rv_