Shameena v. Kerala State Election Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940** **WP(C).No. 11978 of 2018** ## **PETITIONER(S)** **SHAMEENA, AGED 38, D/O. AMINA, KANHIRALA, MAMPAD P.O., NILAMBUR TALUK, MALAPPURAM-676 542.** **BY ADVS. SRI.R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH** ## **RESPONDENT(S):** **1. KERALA STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE BUILDING, LMS JUNCTION, THIRUVANANTHAPURAM-695 033.** **2. RETURNING OFFICER/RE-SURVEY SUPERINTENDENT, MANJERI, G18 MAMPAD GRAMA PANCHAYATH & SUPERINTENDENT OF SURVEY AND LAND RECORDS (RE-SURVEY), MANJERI, MALAPPURAM-676 542.** **3. SHIFNA NAJEEB, D/O. JAMEELA, PARAPPAN HOUSE, PULIKKALODI, VADAPURAM (P.O.), MALAPPURAM-676 542.** - ***Addl.R4. SUHARA PANANILATH, AGED 46 YEARS, D/O AMINA, PANANILATH HOUSE, THOTTINAKKARA, MAMPAD P.O., MALAPPURAM-676 542.** **IS IMPLEADED AS PER ORDER DATED 19.06.2018 IN I.A.NO.9477 OF 2018.** **R1 & R2 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM R3 BY ADV. SRI.P.VENUGOPAL (1086/92) ADDL.R4 BY ADV. SRI.V.G.ARUN ADV. SRI.T.R.HARIKUMAR BY GOVERNMENT PLEADER, SRI. PAUL ABRAHAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-07-2018, THE COURT ON 12-07-2018 DELIVERED THE FOLLOWING:** **P.T.O** ## **WP(C).No. 11978 of 2018 (V)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF 1ST RESPONDENT DATED 8.3.2018 AS REGARD THE CONDUCT OF ELECTION TO THE OFFICE OF PRESIDENT OF GRAMA PANCHAYATH.** - **EXHIBIT P2 TRUE COPY OF THE INFORMATION DATED 27.3.2018 AS REGARD THE FACT THAT THERE IS NO MEMBER IN THE NAME 'SHIFNA NAJEEB' IN THE PANCHAYATH.** - **EXHIBIT P3 TRUE COPY OF THE COMPLAINT DATED 27.3.2018 BY PETITIONER BEFORE 1ST RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS OF 1ST RESPONDENT DATED 31.3.2018.** ## **RESPONDENTS ANNEXURES/EXHIBITS:** - **ANNEXURE R-1A THE PHOTOCOPY OF THE REPORT NO.A2-320/2018 DATED 26.03.2018 OF THE 2ND RESPONDENT SUBMITTED BEFORE THE 1ST RESPONDENT.** **EXHIBIT R3(A) TRUE COPY OF THE ELECTION IDENTITY CARD ISSUED BY THE ELECTION COMMISSION OF INDIA TO THE THIRD RESPONDENT.** - **EXHIBIT R3(B) IDENTITY CARD ISSUED BY THE SECRETARY, MAMPAD GRAMA PANCHAYAT TO THE THIRD RESPONDENT.** - **EXHIBIT R3(C) TRUE COPY OF THE LIST OF CANDIDATES PUBLISHED BY THE RETURNING OFFICER ON 17.10.2015.** - **EXHIBIT R3(D) TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 26.03.2018 PREPARED BY THE SECOND RESPONDENT.** **EXHIBIT R3(E) TRUE COPY OF THE COMPLAINT PREFERRED BY THE SECOND RESPONDENT TO THE S.H.O NILAMBUR POLICE STATION DATED 26.03.2018 TOGETHER WITH THE RECEIPT ISSUED FROM THE NILAMBUR POLICE STATION. EXHIBIT R3(F) TRUE COPY OF THE F.I.R. REGISTERED BY THE NILAMBUR POLICE AS CRIME NO.106/2018. EXHIBIT R3(G) TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 12.04.2018 PREPARED BY THE SECOND RESPONDENT.** **//TRUE COPY//** ## **P.S. TO JUDGE** **St/-** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.11978 of 2018 ----------------------------------------------Dated this the 12[th] day of July, 2018** ## **JUDGMENT** This writ petition is filed by the petitioner who is an elected member to the Panchayat Committee of Mampad Grama Panchayat in Malappuram District. The 1[st] respondent notified the date of election to the office of President of Mampad Grama Panchayat, since the post became vacant due to the resignation of the erstwhile President of the Panchayat, on 26.03.2018 at 11 a.m. The venue of election was fixed at the Grama Panchayat office and the 2[nd] respondent was appointed as the Returning Officer for the election, evident from Ext.P1. 2. It is stated that, as per the schedule, all the 19 members of the Panchayat assembled at the place of venue of election. Petitioner, a member of Indian Union Muslim League, a part of United Democratic Front, as well as 3[rd] respondent, as part of Left Democratic Front, submitted nomination papers to contest the election to the office of President. The nomination paper of 3[rd] respondent was objected to on the premise that 2 **W.P.(C) No.11978 of 2018** there is no member elected to the Panchayat by name, 'Shifna Najeeb', but only “Shifna”. The 2[nd] respondent overruled the objection and permitted the 3[rd] respondent to correct her name in the nomination paper. According to the petitioner, all the members of Panchayat cast their vote in the election to the office of President, and petitioner bagged 10 votes and the 3[rd] respondent got 9 votes. Out of the 10 votes in favour of the petitioner, in the ballot paper of the member of Ward No.13 belonging to Indian Union Muslim League, who is said to have been cast a vote to the petitioner, has written her name in the reverse side of the ballot paper, however, her signature was slightly obscure. Thereupon, a commotion took place during the election process, by which, the counting of the vote did not take place. Information was provided by the 2[nd] respondent to the 1[st] respondent and accordingly, Ext.P4 order dated 31.03.2018 is passed, to conduct the election again on 12.04.2018 at 11 a.m. It is thus challenging Ext.P4 order, this writ petition is filed. 3. Detailed statement/counter affidavit are filed by the respondents. However, a detailed discussion of the same is not required, since I am of the considered opinion that, the **W.P.(C) No.11978 of 2018** 3 writ petition challenging the election process ordered by the 1[st] respondent is not maintainable under law, since as per Sec.153(14) of the Kerala Panchayat Raj Act, 1994, a remedy is prescribed to challenge the validity of an election of President or Vice-President of a Panchayat by filing a suitable petition before the Munsiff Court having jurisdiction over the area in which its headquarters is situated, which reads as follows: _“_ _**153. Election of President and VicePresident** .--(1) In every Panchayat there shall be a President and a Vice-President elected from among the elected members of that Panchayat in accordance with the provisions of this Act, and the President shall be full-time functionary of the Panchayat._ **==> picture [292 x 36] intentionally omitted <==** _**(14) Where a dispute arises as to the validity of an election of President or VicePresident of a Panchayat, any member of that Panchayat may file a petition,-**_ ## _**(a) in the case of Village Panchayat, before the Munsiff Court having jurisdiction over the area in which its headquarters is situated;**_ _(b) in the case of Block Panchayat or District Panchayat, before the District Court having jurisdiction over the area in which its headquarters is situated, for decision and such decision shall be final._ 4 **W.P.(C) No.11978 of 2018** _(14a) The validity of the election of the President or the Vice-President of a Panchayat shall not be called in question for the reason of any vacancy in the place of the members or who shall elect President or VicePresident for the reason of the absence of any member._ **==> picture [302 x 36] intentionally omitted <==** 4. Moreover, Article 243-O of the Constitution of India creates a bar to interference by courts in electoral matters, which reads thus: ## _“_ _**243-O. Bar to interference by courts in electoral matters** .--Notwithstanding anything in this Constitution,--_ _(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K shall not be called in question in any court;_ _(b) 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.”_ 5. I have heard learned counsel for the petitioner and the respective counsel appearing for the respondents. Perused the documents on record and the pleadings put forth by the respective parties. 6. The issue with respect to the maintainability of writ petition in an election to the Madhya Pradesh Municipality in **W.P.(C) No.11978 of 2018** 5 accordance with Article 243ZG was considered by the apex court in ' _**Jaspal Singh Arora** v_ _**. State of M.P. and Others'**_ [(1998) 9 SCC 594], and held that there is a clear bar under the provisions of the Constitution in entertaining a challenge under Article 226 of the Constitution of India. A Division Bench of this Court in the judgment in ' _**Shailamma Issac** v_ _**. Returning Officer, Anicadu Grama Panchayat, Mallappally and Others'**_ [2014 (1) KLT 410] has considered the very same question, taking into account the judgment in ' _**Jaspal Singh Arora'**_ ( _supra_ ), and held that, the remedy for a defeated candidate is provided under Sec.153(14a) of the Kerala Panchayat Raj Act, 1994, and therefore, the writ petition is not maintainable under law. 7. When this writ petition was admitted to the files of this Court, an interim order was passed by this Court, allowing further proceedings pursuant to Ext.P4 to go on, but the outcome of the said proceedings will be subject to the result of the writ petition. Even though petitioner has preferred W.A.No.851 of 2018 against the said interim order, the writ appeal was dismissed on 11.04.2018, granting liberty to the petitioner to move for early hearing of the writ petition. I am **W.P.(C) No.11978 of 2018** 6 informed that, in accordance with the stipulations contained under Ext.P4, election was conducted by the 2[nd] respondent on 12.04.2018. Apparently, petitioner has not challenged the election conducted. Learned counsel for the petitioner submitted that, since this writ petition was filed prior to the said date, the entire aspects of the matter have to be considered in the writ petition. 8. However, I am bound by the judgment of the apex court as well as the Division Bench of this Court referred to _supra_ , and therefore, in my considered opinion, the writ petition is not maintainable under law. The writ petition is dismissed accordingly, leaving open all questions of law and facts raised in the writ petition. Sd/- **SHAJI P. CHALY JUDGE** St/11.07.2018