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2001 DIGILAW 1 (KER)

Induchudan v. M. S. Joseph

2001-01-02

M.RAMACHANDRAN

body2001
Judgment :- M. Ramachandran, J. The petitioner is a resident of Cheruthuruthy Panchayat and had been a working journalist being the Editor of a Daily for a considerable length of time. The Original Petition has been filed by him seeking for a writ of quo warranto calling upon the first respondent to show under what authority of law he is holding the post of Kerala State Election Commission. There is also prayer for issuing a writ of mandamus irecting the Government of Kerala to request the Governor to remove the first respondent from office for his serious lapse and his anti-national and anti-constitution conducts and for recovery of amounts spent unnecessarily for holding bye-elections and towards election expenses because of his lapses. 2. It is stated that a person, who does not satisfy the conditions stipulated by S.29 of the Kerala Panchayat Raj Act, will not be qualified for being elected as a Member of the Panchayat. By that 13/1999, the first schedule was amended. The aforesaid amendment was brought into force with effect from 24.3.1999. There was substantial change brought about by such amendment. Likewise, in the Kerala Municipality Act also, the second schedule had been amended, by Act 13/1999, by incorporating specific allegiance to the sovereignty and integrity of India. It was brought into force by Act 14/1999 with effect from 24.3.1999. 3. Nominations for the elections had been accepted in September, 2000. However, before the acceptance of the nomination papers, it is alleged, that the State Election Commission did not circulate to the Returning Officers the correct form of oath which alone was permissible to be followed under the statutes. What had been circulated was the form of oath that had been in existence prior to the amendment. According to the petitioner, the words "sovereignty and integrity of India" to be included in the oath had been consciously incorporated by the Legislature, but it was omitted to be taken notice of. As a result, it is alleged that the candidates who participated in the elections had subscribed to an oath which was incomplete and did not correspond with the oath that was mandatorily to be taken by them. As a result, it is alleged that the candidates who participated in the elections had subscribed to an oath which was incomplete and did not correspond with the oath that was mandatorily to be taken by them. It is also submitted that even if this was by a mistake, in the second leg of elections that had been conducted in November, 2000, the same form of oath had been circulated to be taken by the elected candidates, and even when certain candidates had pointed out the error, they were forced to forego their protest and they were asked to take oath which was non-existing in form. The petitioner submits that it may be by the sheer ignorance or incapacity of the Election Commission that this had been brought about. He had also referred to the active involvement of political parties and submits that this is rather deliberate, since there are sections of people who did not relish the idea of sovereignty and integrity of Union of India and it was to oblige them this was permitted to be practised. It is further submitted that it is the fundamental duty of every citizen, under Art.51A of the Constitution to respect the ideals of Constitution, National Flag and the National Anthem. It was therefore to be presumed that the first respondent did not respect the Constitution of India or the sovereignty and integrity of the country. The averment further goes to suggest that he has forfeited all his rights to continue as the State Election Commission. He is a person who has subverted the entire idea of Grama Swaraj and its concept. The petitioner refers to the prolific number of election disputes filed and it is most likely, according to him, that because of wrong oath that had been taken, the elections surely will be set aside. The expenses that may be incurred by the State are directly attributable to the negligence and incompetence of the State Election Commission. The demand for withholding of his salary and other benefits has been put up in the above background. 4. I had heard the Standing Counsel for the State Election Commission as also the learned Government Pleader. 5. The expenses that may be incurred by the State are directly attributable to the negligence and incompetence of the State Election Commission. The demand for withholding of his salary and other benefits has been put up in the above background. 4. I had heard the Standing Counsel for the State Election Commission as also the learned Government Pleader. 5. It is submitted by the Election Commission that even if there is an oversight in the office of the Election Commission, that cannot be attributed as an inefficiency and circumstances for holding that he is unfit to hold the post of State Election Commission. 6. As regards the request for making a direction to the State Government to report about the in-competency of the first respondent to the Governor or for such direction to ease out the first respondent, the Standing Counsel submits that the petitioner is not well possessed of the law on the subject. Reference is made to Art.243K of the Constitution. The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in the State Election Commission to be appointed by the Governor. The conditions of service of the State Election Commission shall not be varied to his disadvantage after his appointment and he shall not be removed from his office except in like manner and on the like grounds as a judge of the High Court. Pointing out to Arts.217(1 )(b) and 124 of the Constitution, it is argued that an Election Commission once appointed cannot be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and a majority of not less than two-thirds of the members of that House present and voting. It should also be on the ground of proved mis-behaviour or incapacity. It is submitted by the first respondent that it has not been possible for the petitioner to establish that there was mis-behaviour or incapacity in efficiency of the Election Commission. Since elections had been conducted in the entire State Government within the time limit prescribed and in a most explanatory manner, the allegations, according to him, cannot stand. 7. It is submitted by the first respondent that it has not been possible for the petitioner to establish that there was mis-behaviour or incapacity in efficiency of the Election Commission. Since elections had been conducted in the entire State Government within the time limit prescribed and in a most explanatory manner, the allegations, according to him, cannot stand. 7. In these proceedings, I have not been requested to decide as to whether the State Election Commission had committed a mistake or an oversight whereunder a wrong form of oath had been circulated so as to sworn to by the candidates concerned. The allegation is that there was circulation of a wrong form of oath. I am not called upon to decide the legal results flowing from such conduct. The question is as to whether any circumstance indicates to accede to the request of the petitioner that this is a case where the Election Commission" is to be permitted to continue to hold his office or there is necessity or circumstance to issue a writ of quo warranto. I have to agree with the respondent in that the petition is misconceived in praying for a writ of quo-warranto. A writ of quo-warranto will issue in respect of a functionary only if the object of the proceedings is to challenge the validity or right of the incumbent for appointment or to hold the office. It is not to be used for vindicating private rights or to quash the proceedings holding that he is undesirable in view of allegations. It will not lie only on the ground of alleging that a person who had been appointed was incompetent to discharge the duties that had been attached to the office. In so far as it is not disputed that the petitioner has been validly appointed to the post of State Election Commission the relief of quo-warranto requested by the petitioner cannot be granted. 8. As submitted by the first respondent, there is no allegation that the appointment of the person as the Election Commission was defective in form or substance. No disability as such is highlighted; or allegation of usurpation. His functioning and the alleged incompetence cannot come within the scope of jurisdiction of this Court under Art.226 of the Constitution of India for issuing a writ in the nature of quo warranto. 9. The respondent also challenged the Writ Petition as not maintainable. No disability as such is highlighted; or allegation of usurpation. His functioning and the alleged incompetence cannot come within the scope of jurisdiction of this Court under Art.226 of the Constitution of India for issuing a writ in the nature of quo warranto. 9. The respondent also challenged the Writ Petition as not maintainable. It cannot at all be stated that the petitioner has no locus standi in moving the application. It is settled that any member of the public acting in good faith whose conduct did not disentitle him relief could apply for a writ of quo-warranto without alleging the violation of the specific right. (See Santhosh Chander v. Rajasthan University, AIR 1970 Rajasthan 184). But the right to maintain an application is not coextensive with right to get relief. Firstly, as observed by the Supreme Court in University of Mysore v. Govinda Rao, AIR 1965 SC 491). "the procedure of quo-warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right, it would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office: in some cases, persons not entitled to public office may be allowed to occupy mem and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo wananto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it- It is thus clear that before a citizen can claim a writ of quo warranto. he must satisfy the court, inter alia, that the office in question is a public office and is held by (a) usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not," It is not contended that the appointment is against the statutory provisions. Secondly, the petitioner has also another hurdle that the constitutional post occupied by the first respondent gives him constitutional protection. Secondly, the petitioner has also another hurdle that the constitutional post occupied by the first respondent gives him constitutional protection. Once an appointment, therefore, is conferred, unlike other public office, it may not be possible for this Court or the Governor to hold that the appointee shall cease to hold the office in any circumstances whatsoever, at the powers are effectively circumscribed. Otherwise it will lead to a position which will run counter to the mandate of Art.243K of the Constitution. In such cases, the executive powers are circumscribed, and the Governor mice he discharges the function of appointment becomes functus officio. Therefore, the power of issue of a quo-warranto may not be available to displace a person whose conditions of service are specifically governed by the Constitution. 10. Likewise, the question as to whether he is to be made answerable to any loss to the State Exchequer are also questions debatable and it is too premature for this Court to look into the matter. I am not pronouncing upon the issue whether there was any defect in the form of oath that had been circulated or whether there is bound to happen any legal consequences arising from such a situation, and the questions are left open. 11. The Original Petition is, therefore, dismissed, but however reserving the right of the petitioner to move the appropriate forum for ventilating any grievances, that the petitioner may have.