WP(C) No.36659 of 2023

WP(C) No.36659 of 2023 **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 28TH DAY OF NOVEMBER 2023 / 7TH AHRAHAYANA, 1945** **WP(C) NO. 36659 OF 2023** ## **PETITIONER:** **SREEKUTTAN S. AGED 19 YEARS "KOLAMMULLI HOUSE", NAMBULLUPURA P.O., PALAKKAD, KERALA, PIN - 678592** **BY ADVS. MS.KAVERI MOHAN SRI MATHEW A KUZHALANADAN SRI V.SHYAMOHAN SRI KURIAKOSE VARGHESE MS.SRADHAXNA MUDRIKA MS.BINCY JOB** ## **RESPONDENTS:** **1 SREE KERALAVARMA COLLEGE KANATTUKARA PO, THRISSUR DISTRICT, KERALA REPRESENTED BY ITS PRINCIPAL, PIN - 680011 2 PRINCIPAL SREE KERALAVARMA COLLEGE, KANATTUKARA PO, THRISSUR DISTRICT, KERALA, PIN - 680011 3 THE RETURNING OFFICER SREE KERALAVARMA COLLEGE, KANATTUKARA PO, THRISSUR DISTRICT, KERALA, PIN - 680011 4 CHANCELLOR UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O, MALAPPURAM, KERALA, PIN - 673635 5 THE VICE CHANCELLOR UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O, MALAPPURAM, KERALA, PIN - 673635 6 ANIRUDHAN K S STUDENT OF SREE KERALAVARMA COLLEGE KANATTUKARA PO, THRISSUR DISTRICT, KERALA, PIN – 680011** WP(C) No.36659 of 2023 **2** **ADDL. R7 AND R8 IMPLEADED 7 DR T D SOBHA, AGE NOT KNOWN TO THE PETITIONER, FATHER'S NAME NOT KNOWN TO THE PETITIONER, SOBHANAM, POTTEKKAT HOUSE, LISSUE AVENUE, P.O.PULLAZHY, OLARIKKARA,THRISSUR, 8 DR. M K SUDARSHAN AGE NOT KNOWN TO THE PETITIONER, FATHER'S NAME NOT KNOWN TO THE PETITIONER, MULLUVATHUKKAL HOUSE, MOORKANIKKARA P O, KOZHUKULLY, THRISSUR ( ADDL. R7 AND R8 ARE IMPLEADED AS PER ORDER DATED 09.11.2023 IN IA 1/2023 IN WPC 36659/2023) BY ADVS.** **SRI K.P. SUDHEER (SC) SRI P.C.SASIDHARAN (SC) SRI SURIN GEORGE IPE MS. C.J.LIZY(K/508/2012)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **10.11.2023, THE COURT ON 28.11.2023 DELIVERED THE FOLLOWING:** WP(C) No.36659 of 2023 **3** **==> picture [60 x 34] intentionally omitted <==** ## **T.R.RAVI, J.** ## **----------------------------------------** ## **WP(C) No.36659 of 2023** ## **------------------------------------------Dated this the 28th day of November, 2023** ## **JUDGMENT** The writ petition has been filed with the following prayers; “i. Issue an appropriate writ, order or direction directing the respondents including the respondent Nos.3 and 4 to conduct a thorough investigation into the malpractice, tampering and sabotaging of the election process; ii. Issue an appropriate writ, order or direction directing the respondents including the respondent Nos. 1, 3 and 4 to conduct a re-election to the post of Chairman of the College Union in light of the illegal and improper manner in which recounting was conducted; iii. Declare that the invalidated votes at the time of counting cannot be validated at the time of recounting: iv. Grant such other relief this Hon'ble Court may deem fit & proper, in the facts and circumstances of the case.” 2. The petitioner contested in the election to the post of Chairman to the 1st respondent College Union. The petitioner is a specially-abled student. After the votes were counted, it was found that the petitioner had secured 896 votes, and the 6th respondent had secured 895 votes. The 6th respondent requested WP(C) No.36659 of 2023 **4** a recounting. After recounting, it was found that the 6th respondent had secured 899 votes, and the petitioner had secured 889 votes. The above facts have not been clearly stated in the writ petition, and according to the petitioner, these facts were not made available by publication. The petitioner submits that even though the Principal of the College had directed to stop the recounting, the Manager of the College had directed the Principal to proceed with the recounting. It is alleged that such direction was given to the Principal as well as the Returning Officer. The petitioner, hence, submits that there has been extraneous intervention that has vitiated the entire election process. It is also stated that during recounting, invalid votes were included for recounting as valid votes, which is against the bylaws of the University. The petitioner hence contends that the declaration of the result in favour of the 6th respondent is illegal, and re-election is required to ensure the purity of the election. 3. The respondents have appeared through counsel. Since the allegations made were serious and, if true, would affect the entire election process, this Court directed the Returning Officer to place before the Court the papers relating to the original counting and the recounting. On 09.11.2023, while the matter was being WP(C) No.36659 of 2023 **5** heard, the Returning Officer placed before the Court the true copies of the tabulation sheets. The Court had then directed the Returning Officer to produce the originals of the sheet. The original sheets, which were used for marking the votes during the counting, were placed before the Court on 10.11.2023. On going through the papers that were made available, it is seen that there were altogether four candidates who contested for the post of Chairman, and the votes which were secured by the said four candidates during the counting and the recounting along with the votes which were noted as NOTA and invalid are shown in the Table below; |Sl.No.|Names|Votes originally<br>counted|Votes on<br>recounting| |---|---|---|---| |1|Gokul A. G.|21|21| |2|Sreekuttan S.|896|889| |3|Manya P. P.|25|25| |4|Anirudhan K.S.|895|899| |5|NOTA|19|18| |6|Invalid|23|27| 4. This Court is dealing with a dispute regarding an election, and this Court is fully aware of the limited jurisdiction that is available in such cases under Article 226 of the Constitution of India. Unless it is made out that there is illegality or blatant arbitrariness which renders the election vitiated, it is not proper for WP(C) No.36659 of 2023 **6** this Court to exercise its jurisdiction. 5. Sri P.C. Sasidharan, appearing for the 5th respondent relied on the judgment in **Gujarat University v. N.U.Rajguru & Ors. [1987(Supp) SCC 512]** , wherein the Hon’ble Supreme Court considered an issue relating to the election of teachers to the Court of the University. It was a case where an alternate remedy had been provided in the Statute by means of a machinery for the determination of election disputes. The Apex Court held that where such a forum for the determination of disputes arising out of the election is available, ordinarily, the aggrieved person should pursue his remedy before the forum provided by the Statute. It was also held that the right to vote, contest or dispute election is neither a fundamental nor common law right and that it was only a statutory right regulated by the statutory provisions. **But the Court was, however, cautious, when it also held that there may be exceptional or extraordinary circumstances which may justify bypassing the alternative remedies** . 6. In **University of Kerala v. Council, Principals’, Colleges, Kerala & Ors. [(2006) 8 SCC 304]** , the Hon’ble Supreme Court had directed the constitution of a Committee for WP(C) No.36659 of 2023 **7** submitting a report relating to Students’ Union Elections. The Committee headed by Mr. J.M. Lyngdoh submitted the report, and the Supreme Court accepted the report and directed the recommendations to be implemented subject to certain modifications. The recommendations include the manner in which the election should be held, the eligibility criteria for the candidates, etc. The nature of the directions issued would clearly show that the Apex Court had a larger perspective in mind, that is, preparing the students for the larger canvas of elections to the Local Bodies, Legislature and Parliament and to be instructive to them regarding democratic principles. A detailed Code of Conduct has been prescribed in paragraph 6.7 of the judgment. There is also a grievance redressal mechanism provided in paragraph 6.8 with the Dean (Student Welfare)/teacher in charge of student affairs as its Chairman. The Institutional Head is to have appellate jurisdiction over issues of law and fact in all cases or controversies arising out of the conduct of the elections in which the Grievance Cell has issued a final decision. Paragraph 6.8.4 says that a student can file a complaint with the Grievance Cell within a period of 3 weeks from the date of declaration of results, and the Grievance Cell is expected to act on the complaint within 24 hours WP(C) No.36659 of 2023 **8** after the same is received. 7. In **W.P.(C) No.18232/2023,** referred to by the counsel for the respondents, this Court was considering the election to the Senate of the University and placing reliance on the decision in **Gujarat University (supra)** , held that the question of removal from the electoral roll can only be challenged in a duly constituted election petition filed in terms of the First Statutes. 8. The Supreme Court of India had, in the decision in **Election Commission of India v. Ashok Kumar [(2000) 8** **SCC 216],** considered the scope of interference of the High Court in election matters under the Representation of People Act. The law has been stated in paragraph 32 of the judgment, which is extracted below. “32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove: (1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of WP(C) No.36659 of 2023 **9** interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered will not amount to “calling in question an election” if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of WP(C) No.36659 of 2023 **10** ## the court. (5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material”. 9. Sri Mathew Kuzhalnadan, appearing for the petitioner, relied on the recent decision of the Hon’ble Supreme Court in **Union Territory of Ladakh & Ors. v. Jammu and Kashmir National Conference & Anr.[2023 SCC OnLine SC 1140]** , wherein the Hon’ble Supreme Court considered the question in extenso. Paragraphs 22, 36, and 37, which state the law on the WP(C) No.36659 of 2023 **11** ## subject, are extracted below. **“22.** Elections to any office/body are required to be free, fair and transparent. Elections lie at the core of democracy. The authority entrusted by law to hold/conduct such elections is to be completely independent of any extraneous influence/consideration. It is surprising that the Union Territory of Ladakh not only denied R 1 the Plough symbol, but even upon timely intervention by the learned Single Judge, has left no stone unturned not only to resist but also frustrate a cause simply by efflux of time. **36.** We are conscious that, by way of certain pronouncements, some of which are alluded to in this judgment, the Court extended principles relating to elections to Parliament, State Assemblies and Municipalities to other arenas as well. Indicatively, the interpretation of judgments is always to be made with due regard to the facts and circumstances of the peculiar case concerned. We have looked at Articles 243-O, 243ZG and 329 of the Constitution, and conclude that no bar hit the High Court, even on principle. Apart from the judgments expressly considered and dealt with, hereinbefore and hereinafter, we have perused, out of our own volition, the decisions, inter alia, of varying Bench-strength of this Court in **N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, (1952) 1 SCC 94 : 1952 SCR 218 ; Durga Shankar Mehta v. Thakur Raghuraj Singh, (1955) 1 SCR 267; Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104; Narayan Bhaskar Khare (Dr) v. Election Commission of India, 1957 SCR 1081; Mohinder Singh Gill v. Chief Election** WP(C) No.36659 of 2023 **12** **Commissioner, (1978) 1 SCC 405; Lakshmi Charan Sen v. A K M Hassan Uzzaman, (1985) 4 SCC 689; Indrajit Barua v. Election Commission of India, (1985) 4 SCC 722; Election Commission of India v. Shivaji, (1988) 1 SCC 277; Digvijay Mote v. Union of India, (1993) 4 SCC 175; Boddula Krishnaiah v. State Election Commissioner, Andhra Pradesh, (1996) 3 SCC 416; Anugrah Narain Singh v. State of Uttar Pradesh, (1996) 6 SCC 303; Election Commission of India v. Ashok Kumar, (2000) 8 SCC 216; Kishansing Tomar v. Municipal Corporation, Ahmedabad, (2006) 8 SCC 352; West Bengal State Election Commission v. Communist Party of India (Marxist), (2018) 18 SCC 141; Dravida Munnetra Kazhagam v. State of Tamil Nadu, (2020) 6 SCC 548; Laxmibai v. Collector, (2020) 12 SCC 186** , and last but not the least, **State of Goa v. Fouziya Imtiaz Shaikh, (2021) 8 SCC 401** . On scrutiny, in combination with the timelines and facts of the matter herein, we are sure that the High Court did not falter. **37.** We would indicate that the restraint, self-imposed, by the Courts as a general principle, laid out in some detail in some of the decisions supra, in election matters to the extent that once a notification is issued and the election process starts, the Constitutional Courts, under normal circumstances are loath to interfere, is not a contentious issue. But where issues crop up, indicating unjust executive action or an attempt to disturb a level-playing field between candidates and/or political parties with no justifiable or intelligible basis, the Constitutional Courts are WP(C) No.36659 of 2023 **13** required, nay they are duty-bound, to step in. The reason that the Courts have usually maintained a hands-off approach is with the sole salutary objective of ensuring that the elections, which are a manifestation of the will of the people, are taken to their logical conclusion, without delay or dilution thereof. In the context of providing appropriate succour to the aggrieved litigant at the appropriate time, the learned Single Judge acted rightly. In all fairness, we must note that the learned ASG, during the course of arguments, did not contest the power per se of the High Court to issue the directions it did, except that the same amounted to denying the Appellants their discretion. As stated hereinbefore, we are satisfied that in view of the 1968 Order, the Appellants' discretion was not unbridled, and rather, it was guided by the 1968 Order.” 10. Keeping in mind the law laid down by the Apex Court, I shall consider the issue at hand. The admitted facts show that votes that were initially shown as NOTA have been reduced by ‘1’ during the recounting. Also, 23 votes noted as invalid votes at the time of counting increased to 27 at the time of recounting. The counsel for the petitioner argued that neither a valid vote can be invalidated nor an invalid vote be validated under the guise of recounting. It is submitted that recounting is only for the purpose of counting the valid votes, and votes that were already rejected as invalid cannot be counted again. Reliance is placed on the byelaws of the College Students Union issued by the University of WP(C) No.36659 of 2023 **14** Kerala pursuant to the approval of the Lyngdoh Committee report by the Hon’ble Supreme Court. Bye-law V(13), dealing with the procedure of counting, says that the Returning Officer shall hold scrutiny and counting of votes from the hour appointed on the date fixed. It also states the people who can be present while counting. Bye-law V (14) provides for situations in which a ballot paper can be rejected. Bye-law V(14)(2) specifically states that every ballot paper rejected shall be so endorsed by the Returning Officer, and such papers shall be kept separately. Bye-law V(15) provides for recounting. It says that any candidate may immediately, after the completion of the counting, request the Returning Officer to re-examine or recount the papers of all or any candidate contesting for that particular Office, and the Returning Officer shall re-examine and recount the same accordingly. There is also provision for the Returning Officer to recount the votes at his own discretion, either once or more than once when he is not satisfied with the accuracy of any previous counting. One of the grounds raised is that invalid votes were included in the recounting as valid votes. During recounting, the number of votes that were declared invalid increased. Sri K.P.Sudheer, the counsel appearing for the Returning Officer, was specifically asked as to whether the WP(C) No.36659 of 2023 **15** procedure provided in Bye-law V(14) regarding the rejection of ballot paper for invalidity had been followed. The counsel fairly submitted that the rejection of the vote as invalid had not been endorsed on the ballot paper by the Returning Officer, and ballot papers were also not kept separately. The reason stated for this is that the ballot paper was a consolidated ballot paper including all the posts, and hence, it was not possible to keep them separately because, during the counting, the votes polled for different posts were being noted by the Counting Officers at the same time. It is stated that the ballot paper, hence, could not be kept separately. Admittedly, votes that were earlier rejected were again included and mixed with the valid votes for the purpose of recounting. I do not think that the said method followed is permissible in view of the bye-laws that admittedly govern the election. Even if the ballot papers were not kept separately, that does not permit the Returning Officer to do away with the endorsement of the rejected vote in the case of any post. As per the bylaws, it is only after the separation of the invalid votes that the valid votes are counted, and the votes polled by each candidate are ascertained. It follows that if a recounting is to be done, it must be done from out of the valid votes that are polled. It may be true that a candidate can WP(C) No.36659 of 2023 **16** point out that an invalid vote has been treated as valid wrongly. But going through the complaint submitted by the 6th respondent before the Returning Officer requesting a recount, I do not find any such reason stated. The complaint in Malayalam translated to English only says that as there is some confusion regarding the counting of votes, there should be a recounting. 11. The only other question is whether such illegality should result in the exercise of extraordinary jurisdiction of this Court in favour of the petitioner and in setting aside the election and ordering re-election. The facts of the case show that four votes that were initially treated as valid were treated as invalid at the time of recounting. Since no endorsements have been made, it is not even clear whether all the 23 votes that were initially found to be invalid were treated as invalid during the recounting also. Another aspect that stares at the face is the reduction of the number of votes, which were treated as NOTA, from 19 to 18. However, since NOTA is treated as a valid vote against all candidates, it cannot be said that there cannot be a difference in the number of votes in favour of NOTA on recounting. I am of the opinion that the exceptional and extraordinary circumstance as contemplated in **Gujarat University (supra)** , has arisen in this WP(C) No.36659 of 2023 **17** case. The Returning Officer who is the authority to hold the election has himself admitted that the procedure for the counting has not been followed. As summed up by the Hon’ble Supreme Court in **Ashok Kumar (supra)** in paragraph 32 sub-paragraph (3), there is an admitted breach of the procedure by the authority, which necessarily has to be treated as an arbitrary exercise of power as well as a breach of the law as far as the election in question is concerned. 12. It is the basic principle of law long settled that if an act should be done in a prescribed manner, it must be done in that manner or not at all. (See **Taylor v. Taylor [(1875) 1 Ch.D 426], Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [AIR 1954 SC 322], State of U.P. v. Singhara Singh [(1964) 4 SCR 485], Babu Verghese v. Bar Council of Kerala [(1999) 3 SCC 422], Union Bank of India v. Rajat Infrastructure Pvt.Ltd. & Ors. [2023 SCC OnLine SC 1245** )]. The above said legal principle equally applies to cases where instead of Statute, the manner is prescribed in a Bye-law prepared by the University, which is being applied to a College Union election. Since, admittedly, the prescribed method was not followed, the recounting, as well as the initial counting, has to be declared to be WP(C) No.36659 of 2023 **18** bad in law. Since this Court is called upon to decide only on the legality of the election to the post of Chairman of the College Union, the above declaration of law is limited to the election to the post of Chairman alone. 13. What remains is the consequential directions that need to be issued in view of the declaration made above. The entire voting is over, and the dispute is only regarding the counting. In the above circumstances, what is required is a fresh counting of the votes polled for the election to the post of Chairman of the College Union, scrupulously following the method prescribed in the Bye-laws issued by the University. The prayer for a re-election is rejected. 14. The writ petition is hence disposed of with the following directions: - (a) The declaration that the 6th respondent has been elected as the Chairman of the College Union of the - 1st respondent College is set aside. - (b) The counting as well as the recounting of the votes carried out regarding the election to the post of Chairman of the College Union of the 1st respondent College are declared to be not in accordance with the procedure prescribed. WP(C) No.36659 of 2023 **19** (c) The 3rd respondent is directed to carry out the counting of the votes polled for the post of Chairman of the College Union of the 1st respondent College, strictly in accordance with Bye-law V(13) and V(14) of Ext.P3 Bye-laws issued by the University of Calicut and declare the result accordingly. Sd/- **T.R.RAVI, JUDGE** dsn/pn WP(C) No.36659 of 2023 **20** ## **APPENDIX OF WP(C) 36659/2023** |PETITIONER EXHIBITS|| |---|---| |Exhibit P-1|TRUE COPY OF THE STUDENT IDENTITY CARD| ||DATED NIL ISSUED BY THE SREE KERALAVARMA| ||COLLEGE| |Exhibit P-2|TRUE OF THE NOTIFICATION BEARING NO.| ||167276/DSW-ASST- 2/2023/ADMN (II) DATED| ||30.09.2023 ISSUED BY THE UNIVERSITY OF| ||CALICUT| |Exhibit P-3|TRUE COPY OF THE BYE LAWS OF THE COLLEGE| ||STUDENTS' UNION DATED NIL ISSUED BY| ||UNIVERSITY OF CALICUT| |Exhibit P-4|TRUE COPY OF THE RECOUNTING RESULTS| |Exhibit P-5|TRUE COPY OF THE FINAL RESULTS DATED NIL| |Exhibit P-6|TRUE COPY OF THE COMPLAINT DATED| ||02.11.2023 SUBMITTED TO THE RETURNING| ||OFFICER, RESPONDENT NO. 3 BY THE| ||PETITIONER| |Exhibit P-7|TRUE COPY OF THE ONLINE NEWS ARTICLE| ||TITLED 'COCHIN DEVASWOM PRESIDENT| ||INTERVENED IN COLLEGE ELECTION| ||PROCEDURES: KERALA VARMA PRINCIPAL' DATED| ||02.11.2023 PUBLISHED ON ONMANORAMA| |Exhibit P-8|TRUE COPY OF THE NEWS ARTICLE TITLED 'KSU| ||ALLEGES MANIPULATION IN RECOUNTING IN| ||COLLEGE UNION ELECTION, TO MOVE COURT'| ||PUBLISHED IN THE HINDU NEWSPAPER DATED| ||03.11.2023| |Exhibit P-9|TRUE COPY OF THE ONLINE NEWS ARTICLE| ||TITLED 'AFTER DRAMATIC SCENES, SFI| ||CANDIDATE EMERGES VICTORIOUS AT KERALA| ||VARMA COLLEGE ELECTIONS IN THRISSUR'| ||PUBLISHED ON MANORAMA DATED 03.11.2023| |Exhibit P-10|TRUE COPY OF VIDEO INTERVIEW OF| ||PRINCIPAL, RESPONDENT NO.2 DATED| ||02.11.2023 CONDUCTED BY MATHRUBHUMI NEWS.| |Exhibit P-11|TRUE COPY OF VIDEO INTERVIEW OF COCHIN| ||DEVASWOM PRESIDENT MR.M.K.SUDARSHAN DATED| ||02.11.2023 CONDUCTED BY REPORTER NEWS| ||CHANNEL.|