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1996 DIGILAW 156 (KER)

Sreekanta Bhasi v. University of Kerala

1996-03-22

K.T.THOMAS, S.SANKARASUBBAN

body1996
Judgment :- Sankarasubban, J. Petitioner in the original Petition is the appellant. By Ext. P1, the third respondent notified that election will be held to Defect to live Senate of the University of Kerala 20 members by the Registered Graduates from among themselves. The programme for the election was given in the notification. According to Ext. P1 notification, scrutiny of the nomination was to take place at 11.30 A.M. on 5.1.1995. Nominations have to be made in the prescribed form, copies of which will be supplied from the office of the Registrar to the electors on request. Petitioner filed his nomination in the prescribed form in response to the notification. At the time of scrutiny, there was no objection to the acceptance of the petitioner's nomination. But the Returning Officer rejected his nomination without assigning any reason. By Ext. P3, petitioner requested the Returning Officer to inform the reasons for rejecting the nomination. Then the petitioner was orally informed that the nomination was rejected because the petitioner did not strike off either item 2 or 3 in his nomination paper under the title "Consent and affidavit". Thereafter, petitioner filed Ext.P4 petition before the Vice Chancellor challenging the order of (he Returning Officer rejecting his nomination. Ext.P4 was filed on 6.1.1995. But since there was no response from the Vice Chancellor, he filed the Original Petition on 9.1.1995. The original petition was admitted on 10.1.1995 and on the same day by the order in C.M.P. No. 699/95, the third respondent was directed to accept the petitioner's nomination and allow him to participate in the election. The acceptance of the nomination, participation and election was subject to the result of the Original Petition. Accordingly, petitioner's nomination was accepted and he participated in the election. He was declared elected in the first round itself. Subsequently, the Original Petition was heard and it was dismissed. Hence this appeal. 2. Shri. Thomas Abraham, learned counsel for the appellant, submitted that the third respondent went wrong in rejecting the appellant's nomination. He contented that the nomination could be rejected only on the grounds mentioned in Statute 37 of the Kerala University (Conduct of Elections to various Authorities or bodies ) First Statutes, 1974 (hereinafter referred to as 'the Statutes'). His second contention was. He contented that the nomination could be rejected only on the grounds mentioned in Statute 37 of the Kerala University (Conduct of Elections to various Authorities or bodies ) First Statutes, 1974 (hereinafter referred to as 'the Statutes'). His second contention was. that it was not necessary to strike off items 2 and 3 under the title "Consent and affidavit", since the previous Senate of the Kerala University had ceased to exist from 22,10.1993, when Section 23A was introduced in the Kerala University Act. 3. Shri. K.Sudhakaran, learned counsel on behalf of the fourth respondent, on instructions submitted that the writ petition is not maintainable, since there is an alternate remedy to challenge the election by filing an election petition. He submitted further that the Returning Officer was well within his right when he rejected the nomination paper as it was not duly filled up. 4. We shall first deal with the contention raised by Shri. K.Sudhakaran, learned counsel for the fourth respondent that the Original Petition itself is not maintainable, since an alternate remedy is provided under Statute 29 of the Statutes. It is not an invariable rule that whenever there is an alternate remedy, this Court should refuse to exercise its jurisdiction under Article 226 of the Constitution of India. In the case of patent illegalities and lack of jurisdiction, this Court would exercise its jurisdiction under Article 226 of the Constitution of India and will not relegate the parties to the alternate remedies. The alternate remedy has not stood as a bar when this Court found that the acceptance of rejection of the nomination was illegal-vide anthrayose v. Senior Inspector of Co-op. Societies (1992(2) KLT 489) and Pankajciksha Panicker v. Venugopalan Nair (1993(2) KLT 641). 5. Now we shall consider the question whether the rejection of the appellant's nomination was proper or not. Ext.P1 is the notification issued under Statute 34 of the Statutes to elect members to the Senate of the University from the Registered Graduates. Statute 35 of the Statutes dealing with presentation of nomination paper and requirements for a valid nomination is as follows: "35. Ext.P1 is the notification issued under Statute 34 of the Statutes to elect members to the Senate of the University from the Registered Graduates. Statute 35 of the Statutes dealing with presentation of nomination paper and requirements for a valid nomination is as follows: "35. Presentation of nomination paper and requirements for a valid nomination: - (1) On or before the date appointed under Statute 34, each candidate shall either in person or by his proposed deliver to the Returning Officer at the place specified in this behalf in the notification issued under Statute 34 a nomination paper in the prescribed form, which shall, on application, be supplied free of cost by the returning officer to any elector whose name is in the electoral roll. (2) Every nomination paper shall be proposed by an elector whose name is in the electoral roll and seconded by another elector of the concerned constituency with his signature. The candidate shall sign a declaration on it expressing his willingness to serve on the University authority or body, as the case may be, if elected. He shall also make a statement to the effect that lie is not already a member of such authority or body or if lie is already a member, in such capacity, his term of office would expire before the membership for which he is seeking election takes effect The nomination paper shall reach the Returning Officer within the date and hour fixed, which shall not be earlier than 14 clear days alter the date of publication of the notification in the newspapers." Thus the nomination paper has to he submitted in the prescribed form. Clause (2) of Statute 35 of the Statutes stipulates certain procedural formalities to he observed by the nominee. The nomination paper should be proposed by an elector in the elect oral roll and seconded by another elector in the concerned constituency. The candidate should sign a declaration on the nomination paper expressing his willingness to serve on the University authority or body. The second part of Statute 35(2) directs the candidate to make a statement that he is not already a member of the Senate or if he is already a member of the Senate his term of office would expire before the membership for which he is seeking election takes effect. 6. Ext.P2 is the pr o-form a of the prescribed nomination paper. 6. Ext.P2 is the pr o-form a of the prescribed nomination paper. The details of the requirements under the second part of Statute 35(2) of the Statues are included under the title "Consent and affidavit" by the nominee. It is as follows: "Consent & affidavit by the nominee (1) I agree to serve on the Senate, if elected. (2) I. am not already a member of the Senate. (3) I am already a member of the Senate but my term of office as such will expire before the membership for which I am seeking election, takes effect. ' I am not eligible to be elected under item (1), (4), (5), (6), (9), (10), (11) or (12) of Section 17 of the Kerala University Act,1974. Date: Signature of the nominee Strike off whichever is not applicable. The directions require the nominee to strike off either (2) or (3). It is admitted that appellant did not strike off either. It is on this reason that the Returning Officer rejected the appellant's nomination. 7. Counsel for the appellant submitted mat the Returning Officer has power to reject a nomination paper only on the grounds mentioned in Statute 37 of the Statutes and when those grounds are not available, the rejection of the nomination is invalid. Statute 37 of the Statutes is as follows: "37. Decisions of the Returning Officer on objections - The Returning Officer shall then examine the nomination papers and decide all objections which may be made, at the time to any nomination and may, either on such objection, or on his own motion, after such summary enquiry,-if any, as he thinks necessary, reject, any nomination, on any of the following groundsel) That the candidate is ineligible for election under section 33 of the Act subject to the exceptions mentioned therein, (ii) That the seconder is a person whose name is not registered in the electoral roll; (iii) That the signature of the candidate or seconder is not genuine or has been obtained by fraud. The decision of the Returning Officer, shall, in each case be endorsed by him on the nomination paper in respect of which such decision is given" He relied on the decision reported in Joy v. Calicut University (1986 KLT 1058). According to him, Statute 37 of the Statutes is exhaustive on this aspect. This contention cannot be accepted. The decision of the Returning Officer, shall, in each case be endorsed by him on the nomination paper in respect of which such decision is given" He relied on the decision reported in Joy v. Calicut University (1986 KLT 1058). According to him, Statute 37 of the Statutes is exhaustive on this aspect. This contention cannot be accepted. Statute 37 of the Statutes only prescribes certain conditions on the basis of which the Returning Officer is bound to reject the nomination paper. When the nomination is vitiated by the grounds mentioned in Statute 37, the Returning Officer has no other option but to reject the same. But there may exist other conditions which may vitiate the nomination. There the Returning Officer in exercise of his discretion and taking into consideration the seriousness of the defect, may accept or reject the nomination. This power of the Returning Officer is not curbed by Statute 37. Statute 35 of the Statutes deals with presentation and requirements for a valid nomination. Thus if the nomination is not valid as per the requirements, the Returning Officer can reject the same. There may be many instances which may compel the Returning Officer to reject the nomination. Eg.(1) (he nomination may not be in the prescribed form or (2) it may not bear his signature or (3) the proposer or the seconder could not be identified because of the mistake in the roll. The above are only some of the instances. Even if the nominations are valid under Statute 34, they are liable to be rejected if they are vitiated by the grounds mentioned in Statute 37. Thus statute 37 is not exhaustive with regard to the grounds for rejection of the nominations. In Joy v. Calicut University (1986 K.L.T. 1058) a learned single judge held that Statute 37 of the Calicut University Statutes (which is similar to Statute 37 of the Kerala University) as exhaustive. That decision was taken in appeal in W. A. No. 538/86. Division Bench vacated the finding of the learned Single Judge regarding the interpretation given to Statute 37 of the Calicut University Statutes and left that question open. 8. That decision was taken in appeal in W. A. No. 538/86. Division Bench vacated the finding of the learned Single Judge regarding the interpretation given to Statute 37 of the Calicut University Statutes and left that question open. 8. Counsel for the appellant next submitted that the non striking of either of the clauses mentioned supra is not material as the Senate itself was not in existence from 21-10-1993 and this fact in known to every one connected with the University It is admitted that the terra of the previous Senate was over in 1993. Then as per Section 18(3) of the Kerala University Act, the members of the Senate other than ex-officio and life members were permitted to hold office subject to the provisions of the Act and the Statutes. On 22-10-1993 by Ordinance 9 of 1993, the Kerala University Act was amended by introducing Section 23 A by which the powers of the Senate were given to the Syndicate from 22-10-1993. Later the Ordinance was replaced by an Act. Thus all members of the Senate ceased to exist as such from 22-10-1993. According to the appellant, nobody could be member of the Senate on the dale of tiling of the nomination and hence Clauses 2 and 3 referred to supra had become redundant. Hence the non-striking off any of the clauses is not material. We find force in this contention. Clause 2 and 3 are incorporated with a definite purpose. If a person is already a member of the Senate, he cannot contest in the election unless his term expires before the election is over. Here that contingency does not arise because all the previous members of the Senate ceased to be members from 22-10-1993. Hence we are satisfied that the rejection of the appellant's nomination is wholly unsupportable. 9. As already stated, appellant was permitted to contest in the election and he was declared elected. In such circumstances, we allow the appellant to continue as member of the Senate of the Kerala University. Writ Appeal is allowed.