Abdul Hameed v. State of Kerala — 1988 DIGILAW 39 (KER)

Judgment :- 1. There are two petitioners in this O.P. They are residents of Keezhattur Panchayat. The controversy raised in this case is regarding elections to be held in the Panchayats on 23-1-1988. The last date for filing the nominations was 28-12-1987. The Deputy Director of Panchayats, Malappuram, noticed that mistakes had crept in the voters list of Keezhattur Panchayat, by way of inclusion of many names of voters violating the clearly laid down boundaries of wards. This mistake was noticed in Ext. P1, the list published on 9-11-1987. So the Deputy Director of Panchayats brought this to the notice of the Government by communication dated 14-12-1987. By Ext. P3, dated 26-12-1987, the Government directed to rectify the mistakes by inclusion of all names of voters in the wards, to which they correctly belong. This was so done by the District Panchayat Officer, Malappuram by Ext. P2 dated 29-12-1987. Ext. P3 was implemented by Ext. P2. The controversy raised in this OP. is that the transposition of voters from wards to wards is a vital matter and as per S.15(B)(?) of the Kerala Panchayats Act, this shall not be done after the last date for making nominations for an election to the Panchayat and before the completion of the election. It is said, in this case the last date for filing nomination is 28-12-1987 and the transposition was effected by proceedings dated 29-12-1987, evidenced by Ext. P2. This is illegal in view of S.15(B)(3) of the Act. The petitioner prays for the issue of a writ of certiorari to quash Exts. P2 and P3. He also prays for the issue of a writ of mandamus commanding the respondents to conduct the election in the Keezhattur Panchayat on the basis of Ext. P1, without giving effect to Ext.P2. 2. On behalf of respondents 1 to 3, a detailed counter affidavit was filed dated 12-1-1988. In substance, the mistake that has crept in Ext. P1 is admitted. It is stated that the rectification ordered as per Ext. P3 and which is effected as per Ext. P2, has only given effect to the correct position in law. By Exts. P3 and P2 the voters in a particular ward have been confined to the topographic limits of that ward and no voter from a different ward 19 allowed to exercise bis vote for electing a candidate from another ward. P3 and which is effected as per Ext. P2, has only given effect to the correct position in law. By Exts. P3 and P2 the voters in a particular ward have been confined to the topographic limits of that ward and no voter from a different ward 19 allowed to exercise bis vote for electing a candidate from another ward. Even if it is said that there is a technical violation in giving effect to Ext. P3 by Ext. P2 proceedings dated 29-12-1987, any interference with Ext.P2 at this stage will cause embarassing and difficult situation to Polling Officers, candidates and voters. Any interference with Ext. P2 at this stage, which has the effect of restoring Ext. P1, will create confusion and will result in restoring an illegal or unsustainable position. Ext. P2 and Ext.P3 have only corrected a serious and patent error committed by the officials during the electoral process. The interference by this Court in exercise of the discretionary jurisdiction under Art.226 of the Constitution of India should not result in the restoration of illegal orders or proceedings. There was delay in rendering Ext. P3 and the consequential proceedings, Ext. P2. In view of the pendency of innumerable O.Ps. in this Court, the divisions and the drawing of the line of the boundaries of various Panchayats could not be effected finally. This court rendered the judgment in the batch of cases only on 2-12-1987. It is thereafter the Government took action under S.10(3)A and S.143 and 144 of the Panchayat Act. It is stated that the petitioner is not entitled to any relief. It is also contended that the petitioner has alternate remedies by way of appeal from Exts. P2 and P3 under S.15 C of the Act. Moreover all these matters could be the subject matter of an election petition and so this Court should be loath to interfere with the election process at this stage, in these proceedings under Art.226 of the Constitution of India. 3. I heard counsel for the petitioner, Mr. Appa Nair as also learned Advocate General. Under S.22(1) of the Act the validity of elections is to be determined by the Munsiffs on election petitions filed in that behalf. Under S.22(1)(d) (iv) non-compliance with the provisions of the Act or Rules made thereunder will be a ground to declare the election of a member invalid if it has materially affected the position. Under S.22(1) of the Act the validity of elections is to be determined by the Munsiffs on election petitions filed in that behalf. Under S.22(1)(d) (iv) non-compliance with the provisions of the Act or Rules made thereunder will be a ground to declare the election of a member invalid if it has materially affected the position. Counsel for the petitioner contends that in view of S.15-D of the Act the Civil Court will have no jurisdiction to entertain the plea regarding the transposition of voters from wards to wards. If, as contended by the petitioner, the transposition of voters from wards to wards in this case violates S.15-B(3) of the Act and it is a vital factor in the conduct of elections, the plea that such a question cannot be raised in an election petition, in view of the bar under S.15-D of the Act, is not prima facie acceptable. Anyhow, this aspect of the matter need not be further investigated since on the facts of this case, I am not inclined to exercise the discretionary jurisdiction of this Court under Art.226 of the Constitution of India for very valid reasons. 4. The elections to the various bodies in the State were not held for a considerable number of years. It was only after repeated directions from this Court in various proceedings, the elections themselves have been proposed to be held in January 1988. Even then, when elections were announced, a series of Original Petitions were filed in this Court challenging various aspects with regard to the elections. The matter was disposed of by this Court by judgment dated 2-12-1987. This Court directed that action under S.10 (3A) or S.143 and 144 of the Act is warranted and an adjudication by a higher official, like the Government Secretary, bad to be done in order to finalise the process. These matters took considerable time. In the meanwhile the voters lists were published. The election notification was also published. The last date for filing nominations was fixed as 28-12-1987. But a little earlier, on 14-12-1987 the Deputy Director of Panchayats noticed some mistakes in the voters list of Keezhattur Panchayat by way of inclusion of many names of voters violating the clearly laid down boundaries of wards as could be seen from Ext. P1. The last date for filing nominations was fixed as 28-12-1987. But a little earlier, on 14-12-1987 the Deputy Director of Panchayats noticed some mistakes in the voters list of Keezhattur Panchayat by way of inclusion of many names of voters violating the clearly laid down boundaries of wards as could be seen from Ext. P1. Rewrote to the Government, so that the voters list could be rectified and the election could be conducted on the basis of a proper and valid list. Government passed orders, Ext. P3, dated 26-12-1987 accepting the recommendations of the Deputy Director of Panchayats and ordered that the mistakes which have crept in the voters list should be rectified by inclusion of all the names of voters in the wards to which they correctly belong. Admittedly the said order, Ext. P4, passed on 26-12-1987, was two days before the last day for filing nominations, which was fixed as 28-12-1987. Ext. P3 was given effect to by the District Panchayat Officer by Ext. P2 dated 29-12-1987. It so happened that it was a day later than the last date for filing nominations. It is in such circumstances the challenge is made against Ext. P2 as violating S.15-B(3) of the Act. 5. It should be stated that the parent order, Ext. P3, was passed by the Government earlier, than the last date fixed for filing the nominations, on 26-12-1987, which was well before the last date for filing the nominations. Ext. P2 only gave effect to Ext. P3. So construed, it cannot be said that there is any violation of S.15-B (3) of the Act. Even assuming that the consequential order rectifying the mistakes in the voters list was rendered only on 29-12-1987, a day later than the last date for filing nominations on 28-12-1987 and so there is a technical violation of S.15-B (3) of the Act, still the question is whether interference under Art.226 of the Constitution of India is called for or justified on the tacts of this case? 6. It appears to me that the answer to the question can only be in the negative. It is common ground that mistakes have crept in Ext. P1. It is beyond comprehension to say that Ext. P1 discloses a correct state of affairs. This was brought to the notice of the Government by the Deputy Director of Panchayats by communication dated 14-12-1987. It is common ground that mistakes have crept in Ext. P1. It is beyond comprehension to say that Ext. P1 discloses a correct state of affairs. This was brought to the notice of the Government by the Deputy Director of Panchayats by communication dated 14-12-1987. Noticing that there were mistakes in the voters list, Government passed orders directing rectification of the mistakes by Ext. P3 proceedings, dated 26-12-1987. It was accordingly implemented by Ext. P2 dated 29-12-1987. There can be no inhibition under S.15-B(3) of the Act for Ext. P3 proceedings which on the face of it is long before the last date for filing the nominations. The inhibition pleaded by the petitioner can, if at all, be only for Ext. P2, the consequential order. Ext. P2 only gave effect to Ext. P3. Even assuming that there is a technical violation in the proceedings, Ext. P2, dated 29-12-1987, the effect of nullifying Ext. P2 will be to restore or bring back to life, Ext. P1, which prima facie contains mistakes and which were noticed by the appropriate authorities functioning under the Act. If by quashing Ext. P2, Ext. P1, an illegal and unsustainable voters list, will be restored, it will result in injustice. The power vested in this court under Art.226 of the Constitution of India is to be exercised in aid of justice and not to result or perpetuate injustice. Even assuming for argument sake that Ext. P2 technically violates S 15-B(3) of the Act, since the effect of nullifying or quashing Ext. P2 will result in restoration of an illegal or unsustainable voters list, evidenced by Ext. P1, I am of the view that the jurisdiction under Art.226 of the Constitution of India should not be exercised in such circumstances. The jurisdiction of this Court should not be exercised to restore or bring back to life an illegal or unsustainable proceeding. This aspect of the matter has been clearly stated in more than one decision of the Supreme Court. Nilkanth Prasad v. The Secretary, Chhotanagpur Regional Transport Authority (AIR 1962 SC 1135) at pp. 1137 and 1138 (paragraph 6), Mohammad Swolleh v. IIIrd Addl. District Judge (AIR 1988 SC (Weekly) 94) at page 97 (paragraph 7) and Gadde Venkateswara Rao v. Government of Andhra Pradesh (AIR 1966 SC 828) at p. 837. Nilkanth Prasad v. The Secretary, Chhotanagpur Regional Transport Authority (AIR 1962 SC 1135) at pp. 1137 and 1138 (paragraph 6), Mohammad Swolleh v. IIIrd Addl. District Judge (AIR 1988 SC (Weekly) 94) at page 97 (paragraph 7) and Gadde Venkateswara Rao v. Government of Andhra Pradesh (AIR 1966 SC 828) at p. 837. In the light of the above decisions of the Supreme Court, I am not inclined to exercise the discretionary jurisdiction of this Court under Art.226 of the Constitution of India. In this context, I should further say that this Court should not be unmindful of the serious repercussions that may ensue if any interference is trade just on the eve of the elections, either by passing orders or directions, postponing the election or otherwise resulting in great dislocation and embarrassment for the Polling Officers, candidates and the voters. The decisions of the Supreme Court reported in A. K. M. Hassan Uzzaman v. Union of India (1982) 2 SCC. 218) and The Election Commission of India v. Shivaji (1988 SC 61) are relevant in this context. 7. I deny jurisdiction. The O.P. is dismissed. Issue photostat copies of this judgment to counsel appearing in the case on usual terms. Dismissed.