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2009 DIGILAW 921 (KER)

Surendran v. A. Devidas

2009-09-25

S.S.SATHEESACHANDRAN

body2009
Judgment : The election to the offices of the President and Vice President of the Kollengode Grama Panchayat was held on 6.10.2005. Petitioner in W.P.C.no.7358 of 2007 and the petitioner in W.P.C.No.7359 of 2007 were declared elected as the President and Vice President respectively, both having won by a majority of one vote more than that of the respective candidates who contested against them, by the common second respondent, the Returning Officer. Their election was impeached by the respective candidates who contested against them, the first respondent named in the respective petitions filing separate election petitions. Common grounds were raised that votes cast by one of the Panchayat members in favour of the respective elected candidates, were void as he had not written his name on the reverse side of his ballot papers, but only subscribed his signature, infringing the rules and, thus, rendering his votes void, and also both the returned candidates had been elected by the partisan attitude of the Returning Officer, amounting to a corrupt practice, vitiating the election. The first respondent in W.P.C.No.7358 of 2007 who contested to the office of the President against the petitioner in that writ petition and lost the election, had filed O.P.(Election)No.3 of 2005. The first respondent in W.P.C.No.7359 of 2007 who contested against the petitioner in that petition to the office of the Vice President and lost the election, had filed O.P. (Election) No.19 of 2005. Both petitions were filed before the Munsiff Court, Chittur, the court having jurisdiction over the area in which the Panchayat is situated. The learned Munsiff, after separate trial over the petitions and hearing the counsel on both sides, declared the election of the returned candidate to the office of the President and Vice President as invalid and set aside their election, holding that the election to the above offices shall be decided on draw of lots, fixing the date and time for such draw in the court hall in the presence of the parties and their counsel. The final disposal of both the petitions was deferred to the date fixed for draw of lots. Propriety and correctness of the orders so passed by the learned Munsiff in the respective petitions, O.P. (Election)No.3 of 2005 and O.P.(Election)No.19 of 2005 is challenged by the aggrieved returned candidates elected to the office of the President and Vice President, separately, under the above two Writ Petitions. 2. Propriety and correctness of the orders so passed by the learned Munsiff in the respective petitions, O.P. (Election)No.3 of 2005 and O.P.(Election)No.19 of 2005 is challenged by the aggrieved returned candidates elected to the office of the President and Vice President, separately, under the above two Writ Petitions. 2. In the election held on 6.10.2005, the petitioner in W.P.C.No.7358 of 2007 and the first respondent in that petition contested to the office of the President, and the petitioner and the first respondent in W.P.C.No.7359 of 2007 contested to the office of the Vice President. Petitioners in the respective Writ Petitions got nine votes each and the respective respondents in the petitions who contested against them eight votes each, and the petitioners were declared elected by the Returning Officer to the office of the President and Vice President of the Panchayat having secured a majority of one vote against their contesting candidates. A Panchayat member, namely, Sri.Santhumuthu, who cast his vote in favour of the returned candidates had not subscribed his name in the ballot papers cast in favour of the above candidates, but only put his signature and that being a violation of the Rule 10 of the Kerala Panchayat Raj (Election of President and Vice President) Rules,1995, the votes cast by that member are void is the challenge raised in the election petitions. Excluding his votes, which are void, the returned candidates and their respective contesting candidates had equal votes and therefore, the election should have been proceeded by the second respondent by drawing of lots to elect the President and Vice President, was the case advanced by the contesting candidates who lost the election. The respective petitioners in the election petitions apart from examining themselves, also examined the Panchayat member, namely, Sri.Santhumuthu, whose votes cast in the election were impeached as void, as one of the witnesses, separately, in both the petitions. In O.P.(Election)No.3 of 2005, A1 and A2 and X1 to X3 series were exhibited towards documentary evidence. In the other petition, O.P. (Election)No.19 of 2005, X1 to X4 series were exhibited. 3. Though the election petitions had been tried separately and orders passed accordingly, as common questions of fact and law are involved in the Writ Petitions filed against those orders, after being heard together, the Petitions are disposed under this common judgment. In the other petition, O.P. (Election)No.19 of 2005, X1 to X4 series were exhibited. 3. Though the election petitions had been tried separately and orders passed accordingly, as common questions of fact and law are involved in the Writ Petitions filed against those orders, after being heard together, the Petitions are disposed under this common judgment. Parties are hereinafter referred to as 'the writ petitioners' and 'respondents' except where the rank of the respondents in the respective petition is found necessary, for the sake of convenience. 4. A preliminary objection was raised by the learned counsel appearing for the respective first respondent in both the writ petitions, the defeated candidates in the election held to the office of the President and the Vice President, that the challenge against the orders passed in the respective election petitions by the learned Munsiff cannot be vindicated by way of writ petitions invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. Reliance is placed on Sushama v. Mercy Antony (1999 (3) KLT 818) and Sadhana Lodha v. National Insurance Co. Ltd. [2003(2) KLT 47(SC) ] to contend that only where remedy for challenging the impugned orders by way of revision under Section 115 of the Code of Civil Procedure has been expressly barred petition under Article 227 of the Constitution will lie. The learned Munsiff has not disposed of the election petitions though some findings have been made on the issues involved, is also canvassed by the learned counsel for the first respondent to contend that at this stage a challenge against the order passed by the learned Munsiff is not amenable by way of a Writ Petition under Article 227 of the Constitution of india. On the other hand, the learned counsel appearing for the writ petitioners inviting my attention to sub section (14) of Section 153 of the Kerala Panchayat Raj Act, 1994 which states that the decision on any dispute relating to the validity of an election of the President or Vice President of a Panchayat rendered by the Munsiff Court is final, contended that the final order so passed is amenable to a challenge under Article 226 and Article 227 of the Constitution of India. Reliance is placed on State of H.P. v. Dhanwant Singh [ (2004) 13 S.C.C. 331] to buttress that proposition. 5. Reliance is placed on State of H.P. v. Dhanwant Singh [ (2004) 13 S.C.C. 331] to buttress that proposition. 5. Perusing the orders passed by the learned Munsiff, I find that the election petitions had been practically decided declaring that the election of the writ petitioners as President and Vice President as invalid and setting them aside. After setting aside the election of the writ petitioners, the learned Munsiff has ordered for the parties and counsel to be present in the court hall on the date and time fixed to draw lots to elect the candidate for the office of the President and Vice President of the Panchayat. Needless to point out that the Munsiff Court has no authority to conduct any election by draw of lots or otherwise after setting aside the election of the returned candidates. If at all, the draw of lot is necessary for the reason that on excluding the vote cast by one of the Panchayat members as void the contesting candidates had equal votes, it is for the State Election Commission to draw the lots and elect the candidate and not the court. So much so, the direction so issued by the learned Munsiff for the presence of the parties and counsel to be present in the court hall on the date and time fixed for draw of lots, deferring the disposal of the election petitions is patently infringing the authority conferred on the State Election Commission, which alone is competent to conduct election when a casual vacancy arises in the office of the President or Vice President on setting aside the election of the returned candidate holding such office by the court in an election petition. Sub section (16) of Section 153 of the Kerala Panchayat Raj Act, 1994 reads thus: "(16)Any casual vacancy arising in the office of the President or Vice-President of a Panchayat shall be reported to the State Election Commission in such manner as may be prescribed and the State Election Commission shall take steps for the conduct of election of President or Vice-President, as the case may be, in accordance with the provisions of this Act." Such being the statutory prescription mandating that a casual vacancy arising to the office of the President or Vice President consequent to the disposal of an election petition deciding the dispute raised to the election of the office of the President or Vice President by a court, the directions/orders passed by the learned Munsiff to conduct the election by draw of lots in the court hall directing the parties and counsel to be present fixing the time and date after setting aside the election of the President and Vice President of the Panchayat, deferring the disposal of the election petitions to the date fixed, is one without jurisdiction and patently wrong and illegal. In such a case, there is no merit in the argument canvassed that the impugned orders are entertainable only by way of revision and not amenable to Article 227 of the Constitution of India. The curtailment of the revisional jurisdiction of the High Court does not take away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court. The power of superintendence conferred on the High Court under Article 227 of the Constitution of India over the subordinate courts is not taken away or whittled down by the revisional jurisdiction under Section 115 of the Code of Civil Procedure. In a case where the subordinate court is found to have acted (i) without jurisdiction- by assuming jurisdiction where there exists none, or (ii) acting in flagrant disregard of law or the rules of procedure or acting in violation of the principles of natural justice, where there is no procedure specified, and thereby occasioning failure of justice the supervisory jurisdiction vested with this court under Articles 226 and 227 of the Constitution of India has to be invoked to avoid miscarriage of justice. It is all the more necessary where it is shown that the order or direction passed by the court is based on clear ignorance or utter disregard of the provisions of law, and grave injustice or gross failure of justice has occasioned thereby. So much so, I find that there is no merit in the challenge canvassed that the orders are amenable only by way of revision under Section 115 of the Code of Civil Procedure and not by way of Writ Petition under Article 227 of the Constitution of India. Reference to the decisions canvassed by the respective counsel, as referred to above, I find is not necessary in the given facts of the case where it is demonstrated that the supervisory jurisdiction of this court vested under Article 227 of the Constitution of India has to be invoked to avoid grave miscarriage of justice as the directions/orders passed by the learned Munsiff referred to above is totally against the statutory mandate and infringing upon the authority of the State Election Commission to conduct election to the office of the President and Vice President of the Panchayat. 6. The citadel of the challenge raised by the defeated candidates against the election of the writ petitioners to the office of the President and Vice President is built upon the nonwriting of his name by a voter, a member of the Panchayat in the ballots cast by him in the election. Sri.Santhumuthu, one of the members of the Panchayat had only subscribed his signature, but not his name on the reverse side of the ballot papers while he cast his votes in favour of the writ petitioners, the elected candidates, and therefore, the respective votes cast by him in favour of the returned candidates elected as President and Vice President, are void is the case of the election petitioners, the defeated candidates. Since the above Panchayat member had not written his name on the reverse side of his ballot, Rule 10 of the Kerala Panchayat Raj (Conduct of Election of President and Vice President) Rules, 1995 (hereinafter referred to as 'the Election (President and Vice President) Rules') had been infringed and the votes cast by him in view of such infringement are liable to be treated as void is their case. Rule 10 of the Election (President and Vice President) Rules reads thus: "10. Rule 10 of the Election (President and Vice President) Rules reads thus: "10. Rejection of votes:-A ballot paper which does not bear the seal and signature of the Returning Officer as specified under sub-rule(2) of rule 9 or the mark 'X' as specified under sub-rule (3) of the said rule or the name and signature of the member who has voted or on which 'X' is marked against the names of more than one candidates shall be rejected as invalid." Rule 10 was substituted by S.R.O.No.98 of 1999 with effect from 2.10.1998. Prior to substitution, Rule 10 read thus: "10. Rejection of votes:- A ballot paper, which does not contain signature and seal of the Returning Officer as specified under sub-rule (2) and the mark 'X' as specified under sub-rule (3) of rule 9 or which contains signature or writing of any member of on which 'X' is marked against more than one name, shall be rejected as invalid." Substitution of the old rule by the present rule has been made in view of the introduction of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, by which various provisions were incorporated to curb defection among members of the local authorities providing for disqualification of the defecting members. To detect the identity of the defecting member the above sub rule mandating such particulars necessary to identify the voter, member of the Panchayat, has been introduced. Previous sub-rules (4) (5) and (6) of Rule 9 of the Election (President and Vice President) Rules which provided for maintenance of secrecy of voting had also been repealed in view of the introduction of the Anti Defection laws. So much so, whether the absence of the name before the signature of the member would render rejection of his vote as invalid is the question posed for consideration. 7. In the present case, Sri.Santhumuthu, a Panchayat member, whose votes were challenged as invalid, had cast his votes in favour of the elected candidates is not under dispute. He had subscribed his signature on the reverse side of the ballots in respect of both the elected candidates is also not disputed. Whereas, the above member Sri.Santhumuthu, who was examined as P.W.2 separately in both the election petitions, gave evidence that he wrote his name and then signed in the ballots, which is disputed by the election petitioners contending what was subscribed is only his signature. Whereas, the above member Sri.Santhumuthu, who was examined as P.W.2 separately in both the election petitions, gave evidence that he wrote his name and then signed in the ballots, which is disputed by the election petitioners contending what was subscribed is only his signature. To prove that, the attendance register bearing his signature was also produced. Section 153 of the Kerala Panchayat Raj Act, 1994 deals with the procedure for the election of President and Vice President. Sub section 7A of the above Section mandates that the election shall be by open ballot and the member voting shall, record in writing his name and signature on the reverse side of the ballot paper. As pointed out, this was a new provision brought in with the introduction of the anti defection laws to fix the identity of the member so that if the anti defection laws are violated, he will invite disqualification. A similar provision also appears in the matter of a motion of no confidence, as covered by Section 157 of the Kerala Panchayat Raj Act, that too introduced in view of the anti defection laws, which mandate that when a no confidence motion is moved, election shall be by means of open ballot and the member who cast his vote shall write his name and affix his signature on the reverse side of the ballot paper. In a case where on the voting of a no confidence motion, a member of the Panchayat had written his name and affixed signature on the facing side of the ballot paper and not on the reverse side the validity of the vote cast by him arose for consideration before this court in Antony v. State of Kerala (2005 (4) KLT 69). Analysing the statutory provision, this court has held that the provision that the name and signature shall be on the reverse side of the ballot paper is not mandatory. The Division Bench of this court has affirmed the above decision holding that intention of the voter as disclosed by the vote is material and the purpose of the Rule is to ensure the identity of the member who had cast the vote. The Division Bench of this court has affirmed the above decision holding that intention of the voter as disclosed by the vote is material and the purpose of the Rule is to ensure the identity of the member who had cast the vote. In Ahammed v. Antony (2005(4) KLT 361) this court has stated in unequivocal terms "that the cardinal rule to be followed by the election officers and courts in election matter is to ascertain the intention of the voter as disclosed by vote really cast and give effect to that intention and not to resort strict logomachy and syntax." The dispute in the present case is whether Sri.Santhumuthu signed with his name or subscribed his signature alone in the ballot papers. In his nomination paper and also attendance register of members of Panchayat, his signature show his name with a scribble at the end, and so much so, he should separately record his name for the compliance of the mandate under sub section 7A of Section 153 of the Kerala Panchayat Raj Act to comply the record in writing his name and signature on the reverse side of the ballot paper and when that is not done, the votes cast by him are liable to be rejected in view of Rule 10 of the Election (President and Vice President) Rules is the challenge raised to contend that the votes cast by that member were invalid. The identity of Sri.Santhumuthu, even without his supporting evidence as P.W.2, is disclosed from the ballot papers containing his signatures. Even accepting the contention of the respondent that Sri.Santhumuthu had subscribed only his signature in the ballots, what is seen is that his signature clearly spell out his name. If his signature demonstrably disclosed his name as well proving the identity of the voter who cast that ballot beyond the shadow of doubt, it is futile to contend that he should record his name separately to satisfy the requirements of subsection 7A of Section 153 of the Kerala Panchayat Raj Act and Rule 10 of the Election (President and Vice President) Rules. The court considering the dispute over the election of a President and Vice President is not expected to decide such issue merely on technicalities, but, with reference to the statutory provisions with due regard and significance to the intention of the voter. The court considering the dispute over the election of a President and Vice President is not expected to decide such issue merely on technicalities, but, with reference to the statutory provisions with due regard and significance to the intention of the voter. Where identity of the voter is amply demonstrated and it is not open to doubt and it is disclosed that the name of the voter forms part of the signature, even if it is seen that the signature alone is subscribed, it satisfies the requirements covered by sub section 7A of Section 153 of the Kerala Panchayat Raj Act. The laudable objective in introducing that sub section and Rule 10 of the Election (President and Vice President) Rules could not be lost sight by the court in appreciating a challenge built upon the noncompliance of the requirements under that provision which are intended solely to identify the voter and thus prevent the mischief of defection. The identity of the voter having been fully established, over which there is no challenge at all, and even assuming the worst that the member Sri.Santhumuthu had not written his name but only subscribed his signature on the reverse side of the ballot paper, when his signature demonstrably show his name without a pinch of doubt, the votes cast by him are not liable to be rejected. The learned Munsiff went wrong in concluding that there was noncompliance of the provisions under sub section 7A of Section 153 of the Kerala Panchayat Raj Act and Rule 10 of the Election (President and Vice President) Rules and the votes cast by the above member were invalid, to hold that the election of the writ petitioners to the office of the President and Vice President is invalid. 8. The orders passed by the learned Munsiff impugned in the respective Writ Petitions are set aside and the election petitions are dismissed. Writ Petitions are allowed as indicated above, directing both sides to suffer their respective costs.