Shajahhan K.M v State Election Commission Kerala & 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 MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942 ## WA.No.1481 OF 2020 AGAINST THE JUDGMENT DATED 11.11.2020 IN WP(C) 24065/2020(G) OF HIGH COURT OF KERALA ## APPELLANT/WRIT PETITIONER: SHAJAHAN K.M AGED 46 YEARS S/O.MUHAMMED KUNJU, KUNNATHAN HOUSE, RAYONPURAM P.O., PERUMBAVOOR-683 543 BY ADVS. SRI.P.THOMAS GEEVERGHESE SRI.TONY THOMAS (INCHIPARAMBIL) SRI.E.S.FIROS SMT.AMRUTHA K.P. ## RESPONDENTS/RESPONDENTS: - 1 STATE ELECTION COMMISSION KERALA JANAHITHAM, VIKAS BHAVAN, THIRUVANANTHAPURAM-682 030 - 2 PERUMBAVOOR MUNICIPALITY, REP.BY ITS SECRETARY, PERUMBAVOOR-683 542. - 3 REGIONAL JOINT DIRECTOR OF URBAN AFFAIRS KOCHI, BROADWAY, MARINE DRIVE, ERNAKULAM, KERALA -682 031. 4 STATE OF KERALA REP.BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001. SRI. MURALI PURUSHOTHAMAN, SC FOR R1, R4 BY SRI.C.M.NAZAR, SPL. GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.11.2020, ALONG WITH WA. NOS. 1482 & 1483 OF 2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. Nos. 1481, 1482 & 1483 of 2020 : 2 : IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942 ## WA.No.1482 OF 2020 AGAINST THE JUDGMENT DATED 11.11.2020 IN WP(C) 24397/2020(Y) OF HIGH COURT OF KERALA ## APPELLANT/S: VISHNU PRASANNAN AGED 24 YEARS S/O.PRASANNAN, BALAGRAM P.O., PRAKASH GRAM, IDUKKI-685 552. BY ADVS. SRI.T.G.SUNIL (PERUMBAVOOR) SRI.ANTONY SHYJU ## RESPONDENTS/RESPONDENTS: - 1 STATE ELECTION COMMISSION KERALA, CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM-695 033. - 2 THE DISTRICT COLLECTOR, COLLECTORATE, KUYILIMALA, PAINAV P.O., IDUKKI-685 603. - 3 THE KARUAPURAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KARUNAPURAM, IDUKKI-685 552. - 4 REGIONAL JOINT DIRECTOR OF URBAN AFFAIRS, RSNRA-29,Q.A.C.ROAD, KARBALA, KOLLAM-691 001. SRI. MURALI PURUSHOTHAMAN, SC FOR R1, R2 BY SRI.C.M.NAZAR, SPL. GOVERNMENT PLEADER R3 BY SMT. V. H. JASMINE, SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.11.2020, ALONG WITH WA. NOS.1481 & 1483 OF 2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. Nos. 1481, 1482 & 1483 of 2020 : 3 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942 ## WA.No.1483 OF 2020 AGAINST THE JUDGMENT DATED 11.11.2020 IN WP(C) 24063/2020(G) OF HIGH COURT OF KERALA ## APPELLANT/S: 1 V.H.MUHAMMED AGED 49 YEARS S/O.V.M.HAMSA, VELLAKKUDY HOUSE, ALLAPRA P.O., PERUMBAVOOR-683 556. 2 M.V.PAULOSE, AGED 72 YEARS S/O.VARKEY, MANGALATHU HOUSE, W.VENGOLA P.O., PERUMBAVOOR-683 556. BY ADVS. SRI.P.THOMAS GEEVERGHESE SRI.TONY THOMAS (INCHIPARAMBIL) SRI.E.S.FIROS SMT.AMRUTHA K.P. 1 STATE ELECTION COMMISSION KERALA JANAHITHAM, VIKAS BHAVAN, THIRUVANANTHAPURAM-682 030. 2 VENGOLA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, VENGOLA, PERUMBAVOOR-683 556. 3 DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM-682 030. 4 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001. ## RESPONDENTS/RESPONDENTS: SRI. MURALI PURUSHOTHAMAN, SC FOR R1, R3 & R4 BY SRI.C.M.NAZAR, SPL. GOVERNMENT PLEADER R2 BY SRI. C.A. NAVAS, SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.11.2020, ALONG WITH WA. NOS.1481 & 1482 OF 2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. Nos. 1481, 1482 & 1483 of 2020 : 4 : ## **Dated this the 16[th] day of November, 2020.** ## **JUDGMENT** ## **SHAJI P. CHALY,J.** These appeals are preferred by the petitioners in the writ petitions challenging the judgment of the learned single Judge dated 11.11.2020 in W.P.(C) Nos. 24065, 24397 & 24063 of 2020, which were disposed of along with other writ petitions declining the reliefs sought for in the writ petitions. For convenience, the reliefs sought for by the appellant in the W.A. No. 1481 of 2020 in the writ petition concerned are extracted hereunder. 1. Issue a writ of certiorari or other appropriate writ or order calling for records leading to Ext.P4 order of seat reservation, and quash the same as arbitrary, illegal and violative of statutory and constitutional provisions; 2. Issue a writ of mandamus or other appropriate writ or order directing the respondents to undertake the exercise of allotment of reserved seats, by rotation, by draw of lots among wards of Perumbavoor Municipality, excluding Ward No.27 which was reserved twice successively during previous elections; We make it clear that the reliefs sought in the other writ petitions leading to the connected appeals are also similar in nature, except that the wards and Municipalities/Panchayats are different. 2. The subject issue relates to the allocation of reserved seats to different wards/divisions of the Local Bodies in the State in the ensuing election. The basic contentions raised in the writ petitions W.A. Nos. 1481, 1482 & 1483 of 2020 : 5 : were that the wards/divisions in question were successfully reserved for one or other categories in the elections held during 2010 and 2015 and that the said wards and divisions are reserved again for the third time in the ensuing election to the Local Self Government Institutions. 3. The learned single Judge, after considering the rival submissions, has arrived at the following observations and conclusions at paragraphs 8 and 9 respectively: “8. Before dealing with the question, it must be mentioned that the judgment rendered by this Court, the benefit of which is claimed by the petitioners in this batch of writ petitions, is a judgment in which this Court held that the decision taken by the Election Commission to treat seats reserved for candidates belonging to Scheduled Castes at par with general seats for the purpose of reserving the same again for women, is against the doctrine of equality and also that reserving a seat successively more than twice when reserved seats could be allocated otherwise, is against the scheme of the relevant provisions of the Constitution. In a case of this nature, it would have been prudent for the Election Commission to give effect to the judgment, wherever allocations were made otherwise than in accordance with the judgment. Instead, it is seen that even when similar writ petitions were pending before this court, the Election Commission chose to announce the election which is already delayed, and started opposing similar writ petitions on technical grounds. I am not examining the question as to whether the Election Commission is justified in adopting the said stand, as it W.A. Nos. 1481, 1482 & 1483 of 2020 : 6 : is unnecessary for the purpose of deciding these matters, but I am constrained to make this observation as it is found that it was not impossible for the Election Commission to rectify the flawed procedure adopted by them as pointed out in the judgment as demonstrated by the Election Commission in the matter of complying with the directions in the disposed of cases. 9. The fact that the schedule of the election has been announced on 6.11.2020 is not disputed by anyone. Going by the announced schedule, the first phase of the election is to take place on 08.12.2020, and the nominations of the candidates are to be submitted from 12.11.2020. In other words, there is hardly a month for the election to take place and only a couple of days for the nominations to be submitted. As rightly pointed out by the learned Standing Counsel for the Election Commission, most of the writ petitions lack basic pleadings and in substantial number of writ petitions, the impugned orders are not produced. The matters, therefore, need to be examined on a case to case basis to ascertain whether they are covered by the impugned judgment. I do not think that the said exercise can be undertaken by this Court before the date fixed for submission of nominations. In other words, if reliefs are granted to the eligible among the petitioners in this batch, the election needs to be postponed. In _**A.K.M. Hassan Uzzaman v. Union of India,**_ (1982) 2 SCC 218, the Apex Court has defined the scope of the jurisdiction of this Court under Article 226 of the Constitution in matters of this nature, and held that if interference in a matter relating to election is likely to interrupt, obstruct or protract the election in any manner, the Court shall not exercise the power under Article 226. The relevant passage of the judgment reads thus: “Secondly, though the High Court did not lack the W.A. Nos. 1481, 1482 & 1483 of 2020 : 7 : jurisdiction to entertain the writ petition and to issue appropriate directions therein, no High Court in the exercise of its powers under Article 226 of the Constitution should pass any orders, interim or otherwise, which has the tendency or effect of postponing an election, which is reasonably imminent and in relation to which its writ jurisdiction is invoked. The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Counts writ jurisdiction. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefinitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution. India is an oasis of democracy, a fact of contemporary history which demands of the courts the use of wise statesmanship in the exercise of their extraordinary powers under the Constitution. The High Courts must observe a selfimposed limitation on their power to act under Article 226, by refusing to pass orders or give directions which will inevitably result in an indefinite postponement of elections to legislative bodies, which are the very essence of the democratic foundation and functioning of our Constitution. That limitation ought to be observed irrespective of the fact whether the preparation and publication of electoral rolls are a part of the process of ‘election’ within the meaning of Article 329(b) of the Constitution. We will pronounce upon that question later in our judgment.” The proposition aforesaid has been reiterated by the Apex Court in _**Election Commission of India v. Ashok Kumar**_ , (2000)8 SCC 216, and held further that the Court shall interfere in matters relating to election only if it subserves the progress of the election and facilitates the completion of the election. True, the election process has not formally commenced inasmuch as the notification is yet to be published. But in so far as the election has already been announced and since it is found that this Court may not be in a position to complete the adjudication in these matters before the date for filing of the nominations, having regard to the spirit of the judgments of the Apex Court aforesaid, I am of the view that I W.A. Nos. 1481, 1482 & 1483 of 2020 : 8 : should refrain from exercising my jurisdiction under Article 226 of the Constitution in these matters. I take this view also for the reason that the term of the local bodies in the State is due to expire on 11.11.2020 and the mandate of Articles 243E and 243U of the Constitution is that the election to constitute new local bodies is to be conducted before the expiry of the term of the earlier local bodies.” It is, thus, challenging the legality and correctness of the judgment of the learned single Judge, these appeals are preferred. 4. We have heard respective counsel across the Bar and perused the pleadings and materials on record. 5. The sole question to be considered is whether any manner of interference is warranted to the judgment under challenge. The writ petitioners were basically relying upon the earlier judgments of the learned single Judge in W.P.(C) Nos. 21038 and 21821 of 2020, wherein the learned single Judge directed the Election Commission to re-consider the reservation of seats made without following the principles of rotation. But, the learned single Judge, in the batch of writ petitions leading to these writ appeals found that the said direction was issued prior to the notification issued by the State Election Commission notifying the election to the Local Self Government Institutions. It is to be noted that elections to the Local Self Government Institutions were notified on 06.11.2020 and W.A. Nos. 1481, 1482 & 1483 of 2020 : 9 : it was, accordingly, that the learned single Judge declined to follow the earlier judgments relying upon the proposition of law laid down by the Apex Court in _**A.K.M. Hassan Uzzaman v. Union of India**_[1] and _**Election Commission of India v. Ashok Kumar**_[2] , wherein the Apex Court basically held that though the High Court did not lack jurisdiction to entertain the writ petition and to issue appropriate directions therein, no High Court in the exercise of its powers under Article 226 of the Constitution of India should pass any orders, interim or otherwise, which has the tendency or effect of postponing an election, which is reasonably imminent and in relation to which writ jurisdiction is invoked. Basically, the principles of law evolved by the Apex Court and other Constitutional Courts in the matter of election to various statutory bodies and others are that, after the notification is issued, any interference in the election process would defeat the schedule drawn by the Election Commission and that it also affects the progress of the election and protracts the completion of the election. We are also of the view that the election is notified by the State Election Commission to the Local Self Government Institutions on 06.11.2020 and the elections are scheduled to be held on various dates i.e., 08.12.2020 and the successive dates. > 1 (1982) 2 SCC 218 2 (2000) 8 SCC 216 W.A. Nos. 1481, 1482 & 1483 of 2020 : 10 : 6. Taking into account the aforesaid aspects and bearing in mind the propositions of law laid down by the Apex Court in the judgments relied on by the learned single Judge as well as various other decisions, we do not think, the learned single Judge committed any error in exercising the discretionary jurisdiction conferred under Article 226 of the Constitution of India, liable to be interfered with in an intra-court appeal filed under Section 5 of the Kerala High Court Act, 1958. Needless to say, writ appeals fail and accordingly, they are dismissed. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** _Rv_