Kerala High Court
Abdulla vs Kerala State Election Commission on 27 November, 2020
Equivalent citations: AIRONLINE 2020 KER 1171
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
W.A. No. 1550/2020 : 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.1550 OF 2020
AGAINST THE JUDGMENT DATED 25.11.2020 IN WP(C) 25778/2020(V) OF HIGH COURT
OF KERALA
APPELLANT/PETITIONER:
ABDULLA
AGED 46 YEARS
S/O.IBRAHIM, KIZHAKKE ANJIKKATH, CHANGAMPUZHA NAGAR P.O.,
COCHIN 682 033
BY ADVS.
SRI.BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU
SHRI.P.U.VINOD KUMAR
SMT.ARYA RAGHUNATH
SMT.VAISAKHI V.
SRI.T.M.MUHAMMED MUSTHAQ
SHRI.UNAIS K.P.
RESPONDENTS/RESPONDENTS:
1 KERALA STATE ELECTION COMMISSION
CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM,
THIRUVANANTHAPURAM 695 033, REP.BY ITS SECRETARY.
2 THE RETURNING OFFICER FOR ELECTION TO WARD NOS. 22 TO 42,
KALAMASSERY MUNICIPALITY AND EXECUTIVE ENGINEER,
IRRIGATION, MINOR IRRIGATION DIVISION, ERNAKULAM, KAKKANAD,
KOCHI-682 030
3 THE ASSISTANT RETURNING OFFICER FOR ELECTION TO WARD
W.A. No. 1550/2020 : 2:
NOS.22 TO 42,
KALAMASSERY MUNICIPALITY AND GENERAL SUPERINTENDENT,
KALAMASSERY MUNICIPALITY, CHANGAMPUZHA NAGAR P.O.,
COCHIN 682 033.
4 SEENA T.O.
AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,
RETURNING OFFICER FOR ELECTION TO WARD NOS. 22 TO 42 OF
KALAMASSERY MUNICIPALITY AND EXECUTIVE ENGINEER,
IRRIGATION, MINOR IRRIGATION DIVISION, ERNAKULAM, KAKKANAD,
KOCHI-682 030.
5 V.ASWINI KUMAR
AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,
ASSISTANT RETURNING OFFICER FOR ELECTION TO WARD NOS. 22 TO
42 OF KALAMASSERY MUNICIPALITY AND GENERAL
SUPERINTEENDENT, KALAMASSERY MUNICIPALITY, CHANGAPUZHA
NAGAR P.O., COCHIN-682 033.
6 KALAMASSERY MUNICIPALITY
REP.BY ITS SECRETARY, CHANGAMPUZHA NAGAR P.O.,
COCHIN 682 033.
R1 BY SRI.MURALI PURUSHOTHAMAN
SRI.ARAVIND KUMAR BABU, SR GP FOR R2 AND R3,
R6 BY SRI.M.K.ABOOBACKER, SC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.11.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No. 1550/2020 : 3:
CR
Dated this the 27th day of November, 2020.
JUDGMENT
SHAJI P. CHALY, J.
The captioned writ appeal is filed by the writ petitioner challenging the judgment of the learned Single Judge in W.P.(C) No. 25778 of 2020 dated 25.11.2020, whereby the learned Single Judge refused to interfere with the rejection of nomination submitted by the writ petitioner to the Kalamassery Municipality as per Ext. P11 order dated 20.11.2020 holding that the nomination of the appellant to ward No. 31 was received by the subordinate staff in the Office of the Returning Officer after 3 p.m. on 19.11.2020. It is, thus, challenging the legality and correctness of the said judgment, this appeal is preferred.
2. Brief material facts for the disposal of the appeal are as follows:
Appellant submitted his nominations for contesting from ward No.31 of Kalamassery Municipality, which were registered as serial Nos. 202, 203 and 204 evident from Exts. P2 to P4. On 19.11.2020, some other candidates also submitted their nominations for contesting from ward No. 31, which were registered as serial Nos. 209 to 213 produced and marked as Exts. P5 to P9. The date of scrutiny of nomination papers was on W.A. No. 1550/2020 : 4: 20.11.2020, on which date the Returning Officer namely the second respondent in the appeal rejected the nomination papers of the appellant on the allegation that she has received a report from the 5 th respondent that the nomination papers of the appellant were received only after 3 p.m. on 19.11.2020, which was the outer time fixed for receipt of the nominations. According to the appellant, it was on making a request that Ext. P11 rejection order was given to the appellant.
3. The paramount contentions advanced by the appellant was that the nominations submitted by the others after the submission of the nominations by the appellant were accepted. That apart, it was predominantly contended that the time recorded in Exts. P2 to P4 nominations submitted by the appellant was at 2.56 p.m. Whereas, the nominations of others produced as Exts. P5 to P9 were registered only at 2.58 p.m., and having received the nominations of other persons submitted after the appellant, was nothing but an arbitrary, mala fide and illegal exercise demonstrated by the officers and therefore, interference is required in terms of the principles of law laid down by the Apex Court in Election Commission of India through Secretary v. Ashok Kumar and others [(2000) 8 SCC 216.
4. On the other hand, learned Standing Counsel for the State Election commission, addressed arguments relying upon the statement W.A. No. 1550/2020 : 5: filed before the learned Single Judge, that the general election of the Local Self Government institutions in Kerala was notified on 12.11.2020 and the election process is in progress. Therefore, the writ petition is not maintainable, in view of the bar of jurisdiction created under Article 243- ZG(b) of the Constitution of India. It was also pointed out that the issue raised by the appellant is set at naught by the Constitution Bench judgments of 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 another v. The Chief Election Commissioner, New Delhi and others [AIR 1978 SC 851]. Other facts and figures with respect to the candidates contesting in the election all over kerala and the adverse consequences that can occur, if an interference is made by this Court are also projected. That apart, it was contended that the nominations were finally scrutinised on 23.11.2020 and the final list of candidates were published and the election process has further progressed to the steps for printing the ballot papers. It was also pointed out that the election is to take place from 08.12.2020 onwards and therefore, any interference made would cause serious prejudice to the election process and its progress.
5. We have heard Smt. M. A. Vaheeda Babu for the appellant, Sri. Murali Purushothaman for the State Election Commission and Sri. Aravind Kumar Babu, learned Senior Government Pleader for the State officials, W.A. No. 1550/2020 : 6: and perused the pleadings and materials on record.
6. On going through the judgment of the learned Single Judge, what we could gather is that by virtue of the prohibition created under Article 243-ZG(b) of the Constitution of India, interference was declined. Learned Single Judge has also relied upon various judgments of the Apex Court on this point and had arrived at the conclusion that the correctness or otherwise of the findings in Ext. P11 order of the Returning Officer cannot be adjudicated in a writ petition while the election is in progress.
7. In our view, a reference to the relevant provisions of the Constitution of India and the Kerala Municipality Act, 1994 (hereinafter called 'Act, 1994') would be worthwhile to consider as to whether any interference is required to the judgment of the learned Single Judge. Part IX A of the Constitution of India deals with 'Municipalities'. Among various factors, Article 253-ZG speaks of bar to interference by courts in electoral matters. Clause (b) thereto specifies that no election to any Municipality shall be called in question except by an Election Petition presented to such authority and in such a manner as is provided for by or under any law made by the legislature of a State. Therefore, the look out of this Court is to identify the provisions of law constituted by the State Legislature in this regard.
8. Chapter VIII of the Act, 1994 deals with conduct of elections. W.A. No. 1550/2020 : 7: Section 105 deals with 'appointment of dates for nominations and its process'. Section 108 deals with 'presentation of nomination papers and requirements for a valid nomination and it reads thus:
108. Presentation of nomination paper and requirements for a valid nomination.-- 1. On or before the date appointed under clause (a) of section 105 each candidate shall, either in person or by his proposer, between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon deliver to the Returning Officer at the place specified in this behalf in the notice issued under section 106 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the ward as proposer.
(1A) Every candidate submitting nomination under sub-section (1) shall not be deemed to be qualified to be elected to fill that post unless he submits, along with such nomination, the details regarding his educational qualification, criminal cases in which he is involved at the time of submission of nomination, property owned by him and other members of his family, liabilities including arrears due from him to any Public Sector Undertaking or Government or Local Self Government Institutions and whether disqualified for defection under the Kerala Local Authorities (Prohibition of Defection) Act, 1999 in the form and manner as may be prescribed".] (2) In a ward where the seat is reserved for the Scheduled Castes or the Scheduled Tribes a candidate shall not be deemed to be qualified to be chosen to fill that seat unless a Community Certificate specifying the particular caste or tribe of which he is a member issued by the competent W.A. No. 1550/2020 : 8: officer is produced along with his nomination paper contains a declaration in respect of his caste.
(3) Where the candidate is a person who, having held any office referred to in section 86 has been dismissed or removed and a period of five years has not elapsed since the dismissal or removal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the State Election Commission to the effect that he has not been dismissed or removed for corruption or disloyalty.
(4) On the presentation of a nomination paper, the Returning Officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral roll:
Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood: and the Returning Officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and were necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.W.A. No. 1550/2020 : 9:
(5) Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper:
Provided that not more than three nomination papers shall be presented by or on behalf of any candidate or accepted by the Returning Officer."
9. Relying upon the said provision, learned counsel for the appellant submitted that the office of the Election Commission, on receiving a nomination paper, is duty bound to make necessary scrutiny in order to ensure that the nominations are submitted within the time. Section 111, which deals with 'scrutiny of nominations', reads thus:
"111. Scrutiny of nominations.-- (1) On the date fixed for the scrutiny of nominations under section 105 the candidates, their election agents, one proposer of each candidate and one other person duly authorised in writing by each candidate, but no other person, may attend at such time and place as the Returning Officer may appoint and the Returning Officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and the manner laid down in section 108.
(2) The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry if any, as he thinks necessary, reject any nomination on any of the following grounds, namely:-
(a) that on the date fixed for the scrutiny of nominations, the candidate is W.A. No. 1550/2020 : 10: either not qualified or is disqualified for being chosen to fill the seat under any of the provisions of this Act;
(b) that there has been failure to comply with any of the provisions of section 108 or section 109; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.
(3) Nothing contained in clause (b) or clause (c) of sub-section (2) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.
(4) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. (5) The Returning Officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 105 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:
Provided that in case an objection is raised by the Returning Officer or is made by any other person, the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned.
(6) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is W.A. No. 1550/2020 : 11: rejected, shall record in writing a brief statement of his reasons for such rejection.
(7) For the purpose of this section, a certified copy of an entry in the electoral roll for the time being in force for a ward shall be conclusive evidence of the fact that the person referred to in that entry is an elector in that ward, unless it is proved that he is subject to a disqualification mentioned in section 74.
(8) Immediately after all the nomination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the Returning Officer shall prepare a list of candidates whose nominations have been found valid and affix it to his notice board."
10. The formidable argument advanced by the learned counsel for the appellant was that as per sub-Section (2) thereto, the Returning Officer should have accepted the nomination of the appellant, since the time recorded in the nominations submitted by the appellant was at 2.56 p.m., and there was no scope for making any enquiry at that stage of the proceedings.
11. On the other hand, learned Standing Counsel for State Election commission has invited our attention to Section 178 of the Act, 1994 which is dealing with the grounds for declaring the election to be void. Clause (c) thereto specifies that any nomination rejected improperly is a ground for challenging the election. Therefore, as submitted by the learned Standing Counsel for the State Election Commission, reading W.A. No. 1550/2020 : 12: together the imperative requirements of Article 243-ZG(b) and Section 178 of Act, 1994, it is a complete code by itself to deal with any matters after the process of election has started, which according to him, on publication of the notification declaring the election schedule. Moreover, the provisions of Act, 1994 makes it clear that the powers of the officers are clearly delineated and therefore, they are not expected to transgress the powers and do something. This, in our view, is a conscious decision made by the law makers to avoid any sort of malpractice in the election process and entrust such aspects with the persons with sufficient legal acumen, and independence and integrity .
12. Therefore, the sum and substance of the contention advanced by the learned counsel is that since rejection of nomination is a process in the progress of election and at that stage, if any interference is made, it would materially affect the progress of election process. The contentions advanced by the respective parties are no more res integra. In N.P. Ponnuswami, the Apex Court had occasion to consider the issue of rejection or acceptance of nomination papers in the realm of Article 329
(b) of the Representation of Peoples Act, 1951 in respect of elections to the Parliament and the State Legislatures. It was held therein that the word 'election' is used to embrace the whole procedure of election and is not confined to the final result thereof. It was also held that law does not contemplate two attacks on the matters connected with election, i.e., one W.A. No. 1550/2020 : 13: under Article 226 during the process of election and the other when it is completed by election petition under the Act, 1951 and thereupon, laid down the law that rejection or acceptance of nomination papers cannot be called in question under Article 226. it was also held that where a right or liability is created by a statute which needs a special remedy for enforcing it, the remedy provided by that statute only must be availed of and therefore, it will be a fair inference from the provisions of Act, 1951 to draw that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, there is no remedy provided at any intermediary stage. So also, it was specifically found that the provisions contained under Article 323B is a code by itself i.e., it creates rights and provides for their enforcement by a Special Tribunal to the exclusion of all courts, including the High Court and there can be no reason for assuming that the constitution left one small part of the election process namely acceptance or rejection of nomination paper to be made the subject matter of contest before the High Courts and thereby, upset the time schedule of the elections. The proposition of law so laid down was followed by a five member Constitution Bench of the Apex Court in Mohinder Singh Gill in the realm of cancellation of polling.
13. In Lakshmi Charan Sen v. A.K.M Hassan Uzaman [AIR 1985 SC 1233], yet another five Member Constitution Bench, while considering the question of right to include the names of persons in electoral roll, has W.A. No. 1550/2020 : 14: laid down the law that it is not a matter to be interfered while the election is in progress and when there is a remedy available to such persons. In Boddula Krishnalah and another v. State Election Commissioner, A.P and others [AIR 1996 SC 1595], the Apex Court was dealing with the judgment of the Andhra Pradesh High Court in relation to election to the local body in regard to a writ petition filed seeking a relief not to declare result of an election and conduct of fresh poll. The proposition of law laid down therein was that the election process cannot be interfered by a writ court under Article 226 of the Constitution of India.
14. Our attention was also drawn by the learned Standing Counsel for the State Election Commission to the judgment of the Apex Court in Laxmibai v. Collector Nanded and others [2020 KHC 6154], where the question considered was in respect of rejection of nomination due to failure to submit election expenses within the period prescribed in the Grama Panchayat elections, and it was held that election petition is the sole remedy to impugn rejection of nomination papers.
15. Having regard to the provisions of law discussed above and the propositions laid down by the Apex Court in the afore-quoted judgments, we are of the considered opinion that the law is well settled in regard to the interference of a writ court while an election to the democratic institutions is in progress. However, as we have pointed out earlier, the W.A. No. 1550/2020 : 15: paramount contention advanced by the learned counsel for the appellant is relying upon the judgment of a three Judge Bench of the Apex Court in Election Commission of India through Secretary (supra), wherein the Apex Court was considering a notification issued by the Kerala State Election Commission and an interim order passed by the High Court of Kerala during the currency of election, wherein the Apex Court held that the power of judicial review is a basic structure of Constitution and it was held as follows at paragraph 32:
"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 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 W.A. No. 1550/2020 : 16: 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 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."
16. The learned counsel for the appellant relied upon the law laid down at point nos. 2 and 3 and submitted that since the nominations were received before the outer time limit fixed for receipt of nominations, rejection of the same is an arbitrary exercise of power liable to be interfered with by this court. In our considered view, the findings there cannot be read in isolation as done by the learned counsel for the appellant, since those findings are largely dependent upon the basic finding in point no.1 that the interference shall not interrupt the progress of the election in any manner. Therefore, having so understood the law, we are of the firm view that interference with the rejection of nominations is a matter interrupting the progress of election which is deprecated by the constitution bench judgments of the Apex Court discussed supra. This W.A. No. 1550/2020 : 17: we say with conviction because Asok Kumar (supra) was rendered by the Apex Court also taking note of the proposition of law laid down by the larger Benches of the Apex Court right from Ponnuswami onwards. Moreover, the contents of Ext. P11 impugned order, even going by the contentions of the appellant, is surrounded by various factual circumstances, which could only be deciphered by a fact finding body, especially due to the complex fact dispute with respect to the time recorded by the Receiving Officer of the nominations submitted by the appellant and others. Whatever that be, the Constitution Benches of the Apex Court, in unequivocal terms, have laid down the law that if and when there is a provision to challenge the election, that shall be resorted to, and further clearly stated that the practice of interfering with the elections in writ jurisdiction is not a correct approach to the issue. Thus, there can be no manner of doubt that all the above legal aspects would form as a complete code in the matter of dealing with any writ petitions challenging any action of the officers of the Election Commission during the progress of election .
17. Taking into account the well settled legal circumstances discussed above, we are of the definite view that since there is a clear procedure prescribed as per Act, 1994 to challenge the election on the ground of rejection of nominations, the appellant was not entitled to challenge the same while the election is in progress, under Article 226 of W.A. No. 1550/2020 : 18: the Constitution of India. Thinking so, we have no hesitation to hold that the appellant has not made out any ground justifying interference with the judgment of the learned Single Judge in an intra-court appeal filed under Section 5 of the Kerala High Court Act. However, it is made clear that we have not expressed any opinion on the legality and correctness of the impugned order passed by the Returning Officer at Ext.P11 .
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