Sivapalan G. v. Returning Officer, Alappad Grama Panchayath; Electoral Registration Officer, Alappad Grama Panchayath; Alappad Grama Panchayath (Secretary); Secretary, Alappad Grama Panchayath (Assistant Returning Officer); Kerala State Election Commission; Institute of Human Resources Development; State of Kerala; District Collector, Kollam; Liju P.; Shobana

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** # **WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942** **WP(C).No.25771 OF 2020(V)** ## **PETITIONER:** **SIVAPALAN G., AGED 65 YEARS S/O. GOPALAN, PARAYIDATHU HOUSE, ALAPPAD, KARUNAGAPALLY, KOLLAM DISTRICT.** **BY ADVS. SRI.V.PHILIP MATHEW SRI.GIBI.C.GEORGE** ## **RESPONDENTS:** |**1**|**RETURNING OFFICER**| |---|---| ||**G.05, ALAPPAD GRAMA PANCHAYAT,**| ||**KOLLAM DISTRICT 690 573**| |**2**|**ELECTORAL REGISTRATION OFFICER,**| ||**ALAPPAD GRAMA PANCHAYAT, ALAPPAD 690 573,**| ||**KOLLAM DISTRICT**| |**3**|**ALAPPAD GRAMA PANCHAYAT,**| ||**REPRESENTED BY ITS SECRETARY,**| ||**ALAPPAD 690 573, KOLLAM DISTRICT**| |**4**|**SECRETARY, ALAPPAD GRAMA PANCHAYAT,**| ||**ALAPPAD 690 573 KOLLAM DISTRICT**| ||**(ASSISTANT RETURNING OFFICER)**| ||**G O2005, ALAPPAD GRAMA PANCHAYAT,**| ||**KOLLAM DISTRICT 690 573**| |**5**|**KERALA STATE ELECTION COMMISSION,**| ||**REPRESENTED BY ITS SECRETARY,**| ||**CORPORATION OFFICE COMPLEX, LMS JUNCTION,**| ||**PALAYAM, THIRUVANANTHAPURAM, KERALA 695 033**| W.P.(C) No.25771 of 2020 ..2.. - **6 INSTITUTE OF HUMAN RESOURCES DEVELOPMENT, REPRESENTED BY ITS DIRECTOR, PRAJOES TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, KERALA 695 014** - **7 STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **8 DISTRICT COLLECTOR, KOLLAM 691 013 (DISTRICT ELECTION OFFICER, KOLLAM)** - **9 LIJU P, PUTHUMANGALATH HOUSE, PARAYAKADAVU, AMRITHAPURI P.O, KOLLAM DISTRICT 690 525** - **10 SHOBANA** **RETURNING OFFICER, G.05 ALAPPAD GRAMA PANCHAYAT, KOLLAM DISTRICT 690 573** **(ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(AUDIT), TALUK OFFICE, KARUNGAPALLY P.O, KOLLAM DISTRICT)** **R3-4 BY ADV. SRI.S.SUDHEESHKAR R5 BY SHRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM R6 BY SHRI.DEEPU THANKAN, SC, IHRD** ## **OTHER PRESENT:** ## **SC. MURALI PURUSHOTHAMAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-11-2020, THE COURT ON 25-11-2020 DELIVERED THE FOLLOWING:** W.P.(C) No.25771 of 2020 ..3.. ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **W.P.(C) No.25771 of 2020** ## **-----------------------------------------------** ## **Dated this the 25th day of November, 2020** ## **J U D G M E N T** The ninth respondent has submitted nomination for the election to Alappad Grama Panchayat from Ward No.7. The petitioner also submitted nomination from the very same ward. At the time of scrutiny of the nominations, the petitioner raised objections as to the right of the ninth respondent to contest the election. According to the petitioner, the ninth respondent being a permanent employee under the sixth respondent organization, he is disqualified from contesting the election in terms of the provisions of the Kerala Panchayat Raj Act, 1994. The objections raised by the petitioner were overruled and the nomination of the ninth respondent was accepted. Ext.P3 is the communication issued by the Returning Officer to the petitioner in this regard. The petitioner challenges Ext.P3 communication in this proceedings on the ground that the decision of the Returning Officer as to the eligibility of the W.P.(C) No.25771 of 2020 ..4.. ninth respondent is illegal. 2. Heard the learned counsel for the petitioner as also the learned Standing Counsel for the State Election Commission. 3. The learned Standing Counsel for the State Election Commission has raised a preliminary objection as to the maintainability of the writ petition. According to him, in the light of Article 243-O(b) of the Constitution, the writ petition is not maintainable. 4. Article 243-O of the Constitution 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.” W.P.(C) No.25771 of 2020 ..5.. It is seen that the question whether the jurisdiction of the High Court under Article 226 of the Constitution could be invoked to challenge an improper rejection of a nomination paper, while the election is in progress, has been answered in the negative by a Constitution Bench of the Apex Court in **N.P. Ponnuswami v. The Returning Officer** , **Namakhal Constituency, Namakkal, Salem Dist** [AIR 1952 SC 64], in the context of the _pari materia_ provision in Article 329(b) of the Constitution, holding that irregularities vitiating the election cannot be made the subject matter of a dispute before any court while the election is in progress. In **Mohinder Singh Gill and another v. The Chief Election Commissioner** , **New Delhi and others** [AIR 1978 SC 851], another Constitution Bench of the Apex Court however demarcated the area which is available for interference by the High Court under Article 226 of the Constitution. The relevant passage of the judgment dealing with the same reads thus: "But what is banned is not anything whatsoever done or directed by the Commissioner but everything he does or directs in furtherance of the election, not contrary wise. For example, after the President notifies the nation on the W.P.(C) No.25771 of 2020 ..6.. holding of elections under S.15 and the Commissioner publishes the calender for the poll under S.30, if the latter orders Returning Officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents, is that order immune from immediate attack. We think not. Because the Commissioner is preventing anelection, not promoting it and the Court's review of that order will facilitate theflow, not stop the stream. Election, wide or narrow be its connotation, means choice from a possible plurality monolithic politics not being our genius or reality, and if that concept is crippled by the Commissioner's act, he holds no election at all." In **Manda Jaganath v. K.S.Rathnam and thers** [AIR 2004 SC 3600], after referring to **Mohinder Singh Gill,** the Apex Court held, in the context of a decision taken by the Returning Officer in declining to allot to a candidate the symbol reserved for his political party, that the question whether the Returning Officer is justified in taking such a decision is not a matter for the High Court to decide in exercise of its writ jurisdiction. Paragraph 12 of the judgment in the said case dealing with the said conclusion reads thus: **12** . In our opinion, whether the Returning Officer is justified in rejecting this Form B submitted by the first respondent herein or not, is not a matter for the High Court to decide in the W.P.(C) No.25771 of 2020 ..7.. exercise of its writ jurisdiction. This issue should be agitated by an aggrieved party in an election petition only. After arriving at the conclusion aforesaid, referring to the passage from **Mohinder Singh Gill** extracted above, the Apex Court has explained in **Manda Jaganath,** the scope of interference under Article 226 of the Constitution thus: "Of course, what is stated by this Court hereinabove is not exhaustive of a Returning Officer's possible erroneous action which are amenable to correction in the writ jurisdiction of the Courts. But the fact remains that such errors should have the effect of interfering in the free flow of the scheduled election or hinder the progress of the election which is the paramount consideration. If by an erroneous order conduct of the election is not hindered then the Courts under Art.226 of the Constitution should not interfere with the orders of the Returning Officers, remedy for which lies in an election petition only." In the light of Article 243-O(b) of the Constitution and the decisions of the Apex Court referred to above, I am of the view that only if the impugned decision/action has the effect of interfering in the free flow of the scheduled election or hinder the progress of the election, this court would be justified in entertaining the writ petition. The case on hand does not satisfy the aforesaid W.P.(C) No.25771 of 2020 ..8.. requirement of law. The sustainability or otherwise of Ext.P3 decision of the Returning Officer cannot be considered in this proceedings while the election is in progress. The writ petition, in the circumstances, is devoid of merits and the same is accordingly dismissed. It is, however, made clear that this judgment will not preclude the petitioner from challenging the decision impugned in the writ petition in an election petition instituted in accordance with the relevant statute. ## **Sd/-** **P.B.SURESH KUMAR, JUDGE.** ds W.P.(C) No.25771 of 2020 ..9.. ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**EXHIBIT P1**|**COPY OF THE LIST OF ADMINISTRATIVE**| ||**STAFF OF COLLEGE OF ENGINEERING**| ||**,KARUNAGAPALLY**| |**EXHIBIT P2**|**COPY OF THE OBJECTION DATED 20-11-2020**| ||**AGAINST ACCEPTANCE OF NOMINATION OF**| ||**THE 9TH RESPONDENT**| |**EXHIBIT P3**|**COPY OF THE LETTER DATED 20-11-2020**| ||**FROM THE FIRST RESPONDENT**| ||**COMMUNICATING THE DECISION TO ACCEPT**| ||**NOMINATION OF 9TH RESPONDENT**|