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2009 DIGILAW 442 (KER)

Abu Kunhimuhammad v. V. VS Returning Officer

2009-06-08

T.B.RADHAKRISHNAN

body2009
JUDGMENT : Thotathil B. Radhakrishnan, J. Ext.P1 notice was issued convening a meeting of the fourth respondent panchayat, at 11 a.m. on 19.5.2009, to hold the election to the casual vacancies of President and Vice-President. The petitioner and the second respondent were the candidates to the post of President. All the twenty-one existing members of the panchayat attended the meeting. The Returning officer issued ballot papers to all of them. Though the ballot papers were received by all the members, the Returning Officer received only 20 ballot papers after voting. These are the undisputed facts. 2. Petitioner contends that the third respondent refused to return the ballot paper and when that was detected, on advice from his superior authorities, the Returning officer decided to give one more ballot paper to the third respondent and she, for reasons best known to her, refused to accept such ballot paper and boycotted the meeting. He alleges that some of the members wanted the Returning Officer to count the available ballot papers and declare the results, however that the Returning officer contacted the State Election Commission and as a consequence, issued the impugned Ext.P4 adjourning the election to another date to be specified thereafter. The petitioner challenges that decision and seeks a direction to the Returning officer to declare the result by counting the votes already cast by the members in the election held on 19-5-2009 based on Ext.P1 notification. 3. The first respondent Returning officer has filed a counter-affidavit, the pertinently relevant portion of which is extracted hereunder as follows. 3. After receipt of nominations I read out the names of candidates nominated for election, The writ petitioner and the 2nd respondent were the only candidates nominated for election to the office of president. After the nominations were found valid I supplied to each member the ballot paper in Form No. l of the Rules for the election of President. All the 21 members who were present at the meeting accepted the ballot papers. The voting pattern as per the Rules was explained to the members. After the members cast their votes I went to each member to collect the ballot papers. All the 21 members who were present at the meeting accepted the ballot papers. The voting pattern as per the Rules was explained to the members. After the members cast their votes I went to each member to collect the ballot papers. While I was thus collecting the ballot papers certain members also started collecting ballot papers from other members as if to speed up the process, on verifying the ballot papers that were returned by the members it was found that only 20 ballot papers were returned. One ballot paper was found missing, on verification it was found that the ballot paper issued to the 3rd respondent was not returned, when the 3rd respondent was asked about the ballot paper issued to her she informed that the ballot paper has been collected by some member. At this moment certain members demanded that the 20 ballot papers which has been returned to the Returning officer should be counted and the results declared. The other section of the members opposed the same and demanded that the ballot papers need be counted only after tracing out the missing ballot paper. This was followed by heated exchange of words and there was attempt to snatch the ballot papers from me. 4. In the circumstances, I contacted the state Election commission over telephone and the state Election Commission informed me to issue the 3rd respondent another ballot paper on her giving written request in that regard. However, the 3rd respondent refused to make any such request and walked out of the hall along with other members stating that she had already cast her vote. 4. The second respondent, the candidate rival to the petitioner, has pleaded that the subject matter of this writ petition relates to an election to the office of the President of the panchayat and therefore, is a dispute u/s 153(14) [erroneously pleaded as Section 154 of the Kerala Panchayat Raj Act, 1994, hereinafter referred to as "the Act", it is pleaded that being an election to a village panchayat, such dispute has to be raised before the Munsiff's Court and not by invoking the extra-ordinary jurisdiction under Article 226 of the Constitution. 5. On facts, the second respondent has specifically pleaded in paragraph 4 as follows: On the date of the election, all the members of the panchayat were issued with ballot papers by the Returning officer. 5. On facts, the second respondent has specifically pleaded in paragraph 4 as follows: On the date of the election, all the members of the panchayat were issued with ballot papers by the Returning officer. However, the candidate himself the petitioner herein started collecting the ballot papers including from the third respondent,, it was suspected that after so collecting he had tampered with the ballot papers. There therefore, arose a pandemonium in which one of the ballot papers was lost, since that could not be counted the Returning officer stopped the election and postponed it. A situation was created by the entry of outsiders including party activists by reason of which the Returning officer was disabled from further continuing election and postponed the same. From the ballot papers it was also difficult to identify the votes cast in favour of one of the candidates or other, in the circumstances the only recourse was to postpone the election, which is what the Returning officer did. 6. The third respondent has filed a counter affidavit, inter alia, stating as follows: It is submitted that I was issued with a ballot paper, after I marked my vote instead of returning officer collecting it, the petitioner collected the ballot paper from me and handed over to the Returning officer. In that process it was found to be tampered and I was proposed to issue a second ballot paper then there was serious verbal exchange between candidates, thereafter what transpired was only shouts, threats and warning which being irregular and illegal not continue to a free and fair poll, I was not able to cast my vote again and ultimately resulted to the postponement of election. 7. The State Election commission has also filed a statement producing therewith Annexure-A signed by, among others, the third respondent. The Commission states that there was an inept handling of the process by the Returning officer and there was no clarity regarding the time of meeting for election of vice-President and that sufficient time gap was not provided between the two meetings for the election of the President and vice-president. The Commission states that there was an inept handling of the process by the Returning officer and there was no clarity regarding the time of meeting for election of vice-President and that sufficient time gap was not provided between the two meetings for the election of the President and vice-president. The commission further states that each member has to go to the podium and cast his vote and put the ballot paper in the ballot box and the Returning officer shall in the presence of the members count the ballot papers, declare as to for which candidate each member has recorded his vote, then count the votes secured by each candidate and declare the results in the manner provided. The commission states that the Returning officer ought not to have left his dais for collecting the ballot papers and should not have permitted the members to collect the ballot papers from other members. It is further stated that if the Returning Officer had called each member to his dais in the order of their ward and collected the ballot papers, such piquant situation would not have happened. It is stated that in the confusion that occurred while collecting the ballot papers, one ballot paper was found missing and as per the report submitted to the commission the Returning Officer reported that the third respondent had informed that some member had collected the ballot paper from her. According to the Commission, the confusion has led to a situation where the election could not be conducted in the time scheduled and the election was postponed. 8. LA. 6391/2009 was allowed impleading the petitioners therein as additional respondents. The said five persons are members of the panchayat and in the affidavit accompanying that petition, it is contended that they had also cast their votes and the Returning officer is not counting the votes already recorded by them, without any proper reason. 9. With the aforesaid pleadings on record, the learned senior counsel appearing for the petitioner argued that there appears to be some controversy between the respective stands taken by the commission and the Returning officer. He pointed out that the matters stated in the statement filed on behalf of the commission, touching the relevant laws, are apparently contrary to the legal provisions as they stand. He pointed out that the matters stated in the statement filed on behalf of the commission, touching the relevant laws, are apparently contrary to the legal provisions as they stand. It was, pithily, and quite rightly, pointed out that the Commission's stand that the member of the panchayat has to go to the podium to vote is not part of any statutory provision and that this, is easily discernible when Sub-rule 3 of Rue 9 of the Kerala Panchayat Raj (Election of President and vice-President) Rules, 1995, for short, the "Rules, as it now stands is contrasted with that sub rule as it stood before substitution with effect from 20.10.1998. It was pointed out that the facts as they transpired, could be best ascertained only from the counter affidavit of the Returning Officer who had convened the meeting. Relying on that counter affidavit, it is pointed out that the Returning officer had obtained 20 ballot papers after the voting and that the Returning officer has no complaint about the contents of those ballot papers. It is accordingly argued that the mere fact that one of the ballot papers was not handed over to the Returning Officer is of no consequence and does not invalidate the electoral process, in answer to the criticism that the writ petition does not lie on the face of an efficacious alternate remedy being available in the Munsiffs Court u/s 153(14) of the Act, it is argued, with the support of the decision of the Apex Court in Election Commission of India Through Secretary Vs. Ashok Kumar and Others, AIR 2000 SC 2979 that what the petitioner raises is not a dispute as to the validity of an election of any person as a President or vice-President but the relief sought for in this writ petition is only one which would, if granted, aid towards completing and furthering the election proceedings to its logical end. it is also argued that there is no legally sustainable reason referable to the Act or the Rules enabling the Returning Officer or the commission to undo the process of election which had commenced. it is also argued that there is no legally sustainable reason referable to the Act or the Rules enabling the Returning Officer or the commission to undo the process of election which had commenced. The learned senior counsel further argued that with the amendments to the Rules in 1998, there is no secrecy in the election to the President and Vice-President and therefore, the fact that another member would have seen the voting by a member is of no consequence and the argument of the opposite parties based on the concept of secrecy in election, is wholly unfounded. 10. The learned senior counsel appearing for the second respondent argued that the sweep of the provision in Sub-section 14 of Section 153 of the Act is wider than that of Section 87 which provides the exclusive procedure of an election petition to challenge the election. It is, thus, pointed out that with the availability of such a remedy, it is impermissible for the petitioner to invoke the writ jurisdiction. Referring to paragraph 14 of the decision of the Apex Court in V.S. Achuthanandan Vs. P.J. Francis and Another, AIR 1999 SC 2044 , the learned senior counsel argued that every stage from the time the notification calling for election is issued till the declaration of the result, falls within the term "election" and therefore, it makes no difference whether the result sought for, while raising a dispute, is the furtherance of the election process. It was further argued by the learned senior counsel that, eschewing the ballot paper of the third respondent, there are only 20 ballot papers and if the counting of those ballot papers results in a tie, it would be a situation of exclusion of a vote and letting the procedure fall back on draw of lots, though that is authorized by Sub-rule 7(c) of Rule 9 of the Rules. It is accordingly pointed out that the Returning officer was well within jurisdiction to have adjourned the election and fresh election is the only course that is open in the situation. 11. It is accordingly pointed out that the Returning officer was well within jurisdiction to have adjourned the election and fresh election is the only course that is open in the situation. 11. The effect of Article 243 in Part IX relating to Panchayats and Article 243ZG in Part IX-A relating to Municipalities, in the Constitution of India, is similar to that of Article 329 which provides a bar to interference by courts in electoral matters stricto senso, those provisions apply only to the questioning of the validity of any law relating to delimitation of constituencies and elections to the House of Parliament, the House or either House of the Legislature of a State and panchayats and municipalities, The restrictions by Article 243O of the Constitution and Section 87 of the Act apply only to the calling in question the election to the panchayat, meaning thereby, the General Election thereto. They do not apply to an election to any office in the panchayat. similar is the effect of Article 243ZG. Though the decision on any election petition u/s 87 may affect a person holding an office in the panchayat, as President, vice-President etc., the election to such an office in the panchayat cannot, by itself, be subjected to an election petition u/s 87. It is hence that a separate provision is made as Section 153(14), which falls among the provisions relating to "Members and Presidents of Panchayats". I notice this to conclude that there is no constitutional embargo resulting in the confinement of the remedy in relation to the election of a President or Vice-President of a panchayat to be exclusively on the basis of any statutory election petition. 12. The phrase "validity of an election" occurring, in Sub-section 14 of Section 153 of the Act is nothing but a question relatable to the continued sustenance of the result of the election. Therefore, when a dispute is raised as to the "validity of an election", it is essentially a challenge to the result of the election. Hence, the calling in question an election in terms of Section 87 of the Act and a dispute being raised as to the validity of an election in terms of Section 153(14) are not qualitatively different. Therefore, when a dispute is raised as to the "validity of an election", it is essentially a challenge to the result of the election. Hence, the calling in question an election in terms of Section 87 of the Act and a dispute being raised as to the validity of an election in terms of Section 153(14) are not qualitatively different. Therefore, by recourse to Section 153(14) of the Act, the dispute could be only as to the validity of an election, that is to say, as to whether the result of an election is valid or not. 13. The question then, would be as to whether the complaint regarding the non-completion of the electoral process and declaration of result on the basis of an electoral process which had already commenced would fall within the concept of "questioning an election" or "raising a dispute as to the validity of an election". 14. In the landmark decision of the Hon'ble supreme Court in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, AIR 1978 SC 851 , it was held, inter alia, that a dispute raised may not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election and that if the authority bestowed with conducting the election and that if the authority bestowed with conducting the election takes a decision, which, far from accomplishing and completing the process of election, may thwart the course of the election and if such a step may be wholly unwarranted under the Constitution and the Laws, the writ court under Article 226 of the Constitution is not incapacitated from exercising authority and in such cases, the non-obstante clause in Article 329(b) does not push out Article 226. This principle has been so culled out and relied on later by the Apex Court in Ashok Kumar (supra) to conclude that the provisions of the constitution and the Representation of the People Act, 1951, which fell for consideration in that case, read together, do not totally exclude the right of a citizen to approach the court and that the bar under Article 329(b) would operate if the request for judicial interference amounts to calling in question an election; else it is not, Referring to Mohinder Singh Gill (supra) and N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, AIR 1952 SC 64 ; Lakshmi Charan Sen and Others Vs. A.K.M. Hassan Uzzaman and Others, (1985) 2 SCALE 384 and Election Commission of India Vs. State of Haryana, AIR 1984 SC 1406 , the Apex Court in Ashok Kumar (supra) summed up the conclusions, generally, as follows: 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 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. 33. These conclusions, however, should not be construed as a summary of our judgment. These have to be read along with the earlier part of our judgment wherein the conclusions have been elaborately stated with reasons. 15. With the aforesaid in mind and borrowing the principle contained in conclusion No. (2) quoted above from Ashok Kumar (supra), the decision sought for by the petitioner, to be rendered by this Court in this case, is not one aimed at calling in question an election but is essentially one that subserves the progress of the election and facilitates the completion of the election by the declaration of the result of the election. That is intended only for the due completion of the election proceedings. It is in furtherance of that. It cannot, therefore, be described as questioning the election or raising a dispute "as to the validity of an election", to squarely fall within the jurisdictional parameters, in terras of Section 153(14) of the Act. Therefore, the plea of the second respondent that the petitioner should be relegated to the Munsiff's Court is rejected. 16. It is stated by the first respondent in his counter affidavit that all twenty-one members were present; that he supplied ballot paper to each member in terms of the Rules and that they accepted the ballot papers. He has averred that the voting pattern was explained to the members and after the members cast their votes, he went to each member to collect the ballot papers. He has further stated that while he was thus collecting the ballot papers certain members also started collecting ballot papers from other members as if to speed up the process. He has averred that the voting pattern was explained to the members and after the members cast their votes, he went to each member to collect the ballot papers. He has further stated that while he was thus collecting the ballot papers certain members also started collecting ballot papers from other members as if to speed up the process. The Returning officer states that on verifying the ballot papers that were returned by the members, it was found that only 20 ballot papers were returned and that one ballot paper was found missing, on verification, it was found that the ballot paper issued to the third respondent was not returned and when she was asked about the ballot paper issued to her, she informed the Returning Officer that the ballot paper has been collected by some member. The Returning officer further avers that certain members demanded that the 20 ballot papers which have been returned should be counted and results declared.. He states that there was a heated exchange of words and even an attempt to snatch the ballot papers from him. He states in paragraph 6 of his counter affidavit that a sealed cover containing 20 ballot papers polled in the election has been entrusted to the learned Counsel for the State Election commission. There is no averment by him that any ballot paper was lost after it reached him or that there was any damage to any ballot paper after it came in to his possession. 17. Immediately, I may advert to the counter affidavit of the third respondent wherein she says that she marked her vote and "instead of the Returning officer collecting it, the petitioner collected the ballot paper", According to her, the ballot paper collected from her by the petitioner was handed over to the Returning officer and in that process, it was found to be tampered and a second ballot paper was proposed to be issued to her and that serious verbal exchange between candidates led to her not being able to cast her vote again. 18. The aforesaid pleadings of the Returning officer and the third respondent categorically show that the third respondent was given a ballot paper and she marked her vote. 19. Section 153(7A) provides that election shall be by open ballot and member voting shall record in writing his name and signature on the reverse side of the ballot paper. 18. The aforesaid pleadings of the Returning officer and the third respondent categorically show that the third respondent was given a ballot paper and she marked her vote. 19. Section 153(7A) provides that election shall be by open ballot and member voting shall record in writing his name and signature on the reverse side of the ballot paper. The Rules are made in exercise of the power delegated to the Government u/s 254 read with Section 153 of the Act. They are statutory. Rule 9(1) of the Rules provides that the Returning Officer shall supply ballot paper to each member wishing to vote in the election, Sub-rule 3 of Rule 9 provides that every member shall, immediately on receipt of the ballot paper, put the mark 'X' on the ballot paper against the name of the candidate for whom he intends to vote and hand over the ballot paper to the Returning officer after writing his name and signature on the reverse side of the ballot paper. The third respondent does not have a case that she handed over the ballot paper to the Returning officer after marking on it. The fact that she pleads that she handed over the ballot paper to the petitioner, is not to be excused on the ground that the petitioner, allegedly, collected it. A member of the panchayat holds a responsible office. The Rules require that member to cast the vote in the manner prescribed in Rule 9(3), The Returning officer is not required by the statutory rule to collect the ballot papers, as if he has such responsibility over and above the responsibility of the voting member to hand over the ballot paper to the Returning officer in terms of Rule 9(3). Therefore, while the Returning officer states that certain members also started collecting ballot papers from other members as if to speed up the process, such an incident cannot be utilized to have a re-election on the premise that the third respondent's vote marked on the ballot paper issued to her is not, as of now, available with the Returning officer. The purity of the electoral process has to be ensured and the first among the salutary requirements is to ensure that the election is held in the meeting held for such purpose. The purity of the electoral process has to be ensured and the first among the salutary requirements is to ensure that the election is held in the meeting held for such purpose. That process culminates only by the declaration and publication of the result, Therefore, the meeting which commenced on 19.5.2009 and was adjourned, has to start from the stage at which it was adjourned and that meeting has to be completed by the declaration of the result on the basis of the ballot papers which are in the safe custody of the Returning officer and available, as of now, in a sealed cover with the learned standing counsel for the commission. None of the parties has raised any allegation against the Returning officer except as regards the attributes made with reference to the ballot paper that was issued to the third respondent. Therefore, such declaration of result will only result in the completion of the election in furtherance of the proceedings already commenced. 20. In the result, it is declared that Ext.P4 results only in the adjournment of the meeting which was already commenced on 19.5.2009 and that meeting shall be concluded on a nearest possible date as may be fixed by the Commission, for the continuance of that meeting, Ext,P4, in so far as it contains any decision stopping the electoral process that commenced on 19,5.2009, is quashed to pave way for fixing a date to continue with the meeting which commenced on 19.5.2009 in terms of the above declaration. The State Election Commission and the Returning Officer are directed to fix a date at the earliest for such purpose and declare the result of the election to the post of President in terms of the votes already polled and then, continue with the election of the Vice-President which was also an item in the agenda for the meeting dated 19-5-2009. The writ petition is ordered accordingly. No costs.