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2013 DIGILAW 404 (KER)

Abraham P. Mathew (Prof. ) v. Vice Chancellor

2013-05-20

P.R.RAMACHANDRA MENON

body2013
JUDGMENT : P.R. RAMACHANDRA MENON, J. 1. The question to be considered and decided is whether a person, whose nomination (for election to the Senate of the respondent University) is rejected, can be termed as a 'candidate' for the purpose of maintaining an 'Election Petition' under Statute 90 of Chapter V of the Calicut University (Conduct of Elections to Various Authorities or Bodies) First Statutes, 1975 (herein after referred to as 'Statutes'), read with Statute Nos. 29 and 37 of the said Statutes, in view of the restrictive definition of the term 'candidate' as given under Statute 2 (1) (c) of the above Statutes. The petitioner is the Principal of Marthoma College, Chungathara in Malappuram District and is a member of the Syndicate of the respondent University. Election of members to the Senate was notified by the University as per the notification dated 23-1-2013; appendix of which has been produced as Ext. P-1. In response to the said notification, the petitioner sought to place his candidature by filing nomination; a format of which stands produced as Ext. P-2. It is contended that the nomination was put up strictly in tune with Ext. P-3 'Instructions to the Candidates'. The last date for submitting the nomination paper to the Returning Officer (who is the second respondent herein) was specified as 7-2-2013; the date of scrutiny was fixed as 11-2-2013 and the date for counting of the votes was specified as 16-4-2013; as borne by Ext. P-1. 2. The nomination submitted by the petitioner came to be rejected by the second respondent, on the ground that the person who 'seconded' the nomination had not put the 'date' along with his signature. When the petitioner came to know the rejection, Ext. P-4 complaint was preferred before the Returning Officer. The same was replied by the second respondent/ Returning Officer, vide Ext. P-5, holding that the nomination was invalid for the reason mentioned herein before. This in turn is under challenge in this writ petition. 3. When the matter was taken up for consideration, the very maintainability of the writ petition was doubted in view of the alternate remedy available, by way of 'election petition' to be preferred before the competent authority. Mr. This in turn is under challenge in this writ petition. 3. When the matter was taken up for consideration, the very maintainability of the writ petition was doubted in view of the alternate remedy available, by way of 'election petition' to be preferred before the competent authority. Mr. T. Krishnan Unni, the learned senior counsel appearing for the petitioner submitted that no alternate remedy was available for the petitioner, in so far as the 'election petition', if at all any, could be preferred only by a "candidate" as discernible from Statute 90(1)(b) (iii). It was pointed out that the term "candidate" has been defined under Statute No. 2 (1) (c) as 'a person qualified to seek election, who has been duly nominated in accordance with the Statutes'. The learned senior counsel for the petitioner submitted that the very nomination of the petitioner having been rejected, the petitioner did not fit into the definition of the term "candidate" as given under Statute 2 (1) (c) and as a natural consequence, he cannot validly institute/maintain an 'election petition' as well. It is further pointed out that Statute No. 37 enables the Returning Officer to conduct scrutiny and reject the nomination for the reasons mentioned therein and that the reason given in Ext. P-5 (for not showing the 'date' of signature by the 'seconder') is not a valid reason. No such stipulation is incorporated in Ext. P-3 'Instructions to the Candidates' as well. It is contended that nomination for election to various bodies of the University, is not liable to be rejected for flimsy reasons and that the date of signature is very much discernible from the particulars given in the filled up nomination. Reliance is sought to be placed on Statute No. 35 as to the presentation of nomination paper and requirements for a valid nomination and the scope of scrutiny of nomination under Statute No. 36. Reference is also made to the decision rendered by the Division Bench of the High Court of Rajasthan reported in Gopal Singh Vs. The Election Tribunal-cum-Additional Civil Judge (S.D.), and reliance is sought to be placed on the decision rendered by a Division Bench of this Court in Kerala Public Service Commission Vs. State Information Commission. 4. Mr. Reference is also made to the decision rendered by the Division Bench of the High Court of Rajasthan reported in Gopal Singh Vs. The Election Tribunal-cum-Additional Civil Judge (S.D.), and reliance is sought to be placed on the decision rendered by a Division Bench of this Court in Kerala Public Service Commission Vs. State Information Commission. 4. Mr. Santhosh Mathew, the learned standing counsel representing the respondent University submits that the idea and understanding of the petitioner, as to the scope of the relevant provision sought to be relied on, is quite wrong and misconceived. It is stated that the scope of the term "candidate" referred to under Statute 90 (1) is wide enough, so as to include a person who wants to contest an election even though his nomination comes to be rejected later on. Nomination has to be submitted in the prescribed format and since Column 10 of Ext. P-2 nomination paper clearly requires signature of the seconder with date, omission of the date is fatal, and since there is no dispute with regard to the factual position in this regard, rejection of the nomination for the reason, as given in Ext. P-5, is perfectly within the four walls of law and that it is not assailable under any circumstances. The learned counsel also sought to place reliance on the decision rendered by a learned Single Judge of this Court as reported in Sivadasan, K.G. Vs. P.V. Sivadasan, to contend that the expression "candidate" also means a person who has been or claims to have been duly nominated as a candidate at election. 5. The points to be considered in this case are; whether the petitioner can maintain an 'election petition' under Statute 90, in view of the restrictive definition of the term candidate in Statute 2 (1) (c) and whether rejection of the nomination for not mentioning the 'date' of signature against Column 10 of Ext. P-2 nomination paper is fatal enough to result in the rejection of the nomination as such. 6. Arguments were addressed to by both the sides; especially on the first question as to the maintainability of the writ petition; in view of the alleged remedy by way of 'election petition' under Statute 90. P-2 nomination paper is fatal enough to result in the rejection of the nomination as such. 6. Arguments were addressed to by both the sides; especially on the first question as to the maintainability of the writ petition; in view of the alleged remedy by way of 'election petition' under Statute 90. It is true that Statute 2 (1) (c) clearly defines the term "candidate" as 'a person qualified to seek election, who has been duly nominated in accordance with the Statutes'. This prima facie suggests that, a person who has not been validly nominated may not be treated as a "candidate" at all. But it has to be remembered that the said provision does not use the conjunction "and", before it proceeds to say "who has been duly nominated in accordance with these Statutes". Statutes 35 and 36 (which are stated to be as similar clauses dealt with by the Division Bench of the Rajasthan High Court--as per the decision cited supra) read as follows: 35. Presentation of nomination paper and requirements for a valid nomination.-- On or before the date appointed under Statute 34, each candidate shall either in person or by his proposer between the hours of eleven O' clock in the forenoon and three O' clock in the afternoon 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: Provided that no nomination paper shall be delivered to the Returning Officer on a day which is a holiday. (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 he is not already a member of such authority or body or if he is already a member in such capacity, his term of office would expire before the membership for which he is seeking election takes effect. He shall also make a statement to the effect that he is not already a member of such authority or body or if he 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 after the date of publication of the notification in the news papers. 36. Scrutiny of nominations.--All nomination papers received through the post or deposited in the box provided for the purpose in the office of the Returning Officer within the prescribed hour on the prescribed date shall be scrutinized by the Returning Officer. The candidate or his representative who shall be appointed in writing by him and approved by the Returning Officer, may be present at the time of scrutiny of nomination. It is that the above provisions are included in Chapter II of the Statutes under the heading "Procedure for Election by Postal Ballot". But, by virtue of the provisions under Chapter III, which prescribes the procedure for election without Postal Ballot, subject to the provisions given above, the said Statutes shall 'mutatis mutandis' apply to election otherwise than by Postal Ballot (separately dealt with under Statute 69 of Part A and Statute No. 79 of Part B of Chapter III) referring to Statutes 3 (2) and 3 (3) respectively. 7. With reference to notification of election under Statute 34, it is stipulated under Statute 35, that nomination has to be submitted on or before the date appointed under Statute No. 34 at the time specified therein by delivering the same to the Returning Officer at the place specified in the notification. The said Statute stipulates that nomination shall be in the prescribed format and that it shall be submitted by the "candidate" either in "person" or by his "proposer" on the date, time and place as mentioned above. Statute 36 deals with the scrutiny of the nomination to be effected by the Returning Officer. This Statute enables the "candidate" or his representative, who shall be appointed in writing, and approved by the Returning Officer, to be present at the time of scrutiny. 8. Statute 36 deals with the scrutiny of the nomination to be effected by the Returning Officer. This Statute enables the "candidate" or his representative, who shall be appointed in writing, and approved by the Returning Officer, to be present at the time of scrutiny. 8. Statute 37 mandates the examination of the nomination papers and the objection and may, either on such objection, if any or on his own motion, and after summary enquiry, if necessary, reject any nomination on the grounds mentioned under Clauses (a) (b) or (c) specifying the reason for such rejection which shall be endorsed on the nomination paper. The said provisions reads 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 grounds: (a) that the candidate is ineligible for election under sub-section (1) of Section 33 of the Ordinance, subject to the exceptions mentioned therein; (b) that the seconder is a person whose name is not registered in the electoral roll; (c) 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. This is followed by publication of the list of candidates, whose nomination has been declared as valid. Any candidate may withdraw his/her candidature under Statute 39 and after the expiry of the stipulated time, the final list of candidates validly nominated, is published, as dealt with under Statute No. 40. Reference to the remaining provisions in this Chapter may not be necessary for the purpose of this case. 9. Any candidate may withdraw his/her candidature under Statute 39 and after the expiry of the stipulated time, the final list of candidates validly nominated, is published, as dealt with under Statute No. 40. Reference to the remaining provisions in this Chapter may not be necessary for the purpose of this case. 9. With regard to the nicety of the definition of the term "candidate", as sought to be projected by the petitioner with reference to Statute 2 (1) (c), it is relevant to note that the provisions sought to be relied on by the petitioner himself (Statutes 35, 36 and 37) give an idea that the scope of definition of the term "candidate" as dealt with therein is something wider, so as to include a qualified person who claims to get elected as well. As extracted hereinbefore, Statute 35 dealing with the presentation of nomination paper and requirements for a valid nomination, itself stipulates that the nomination has to be delivered on the prescribed date, time and place by delivering the same to the Returning Officer, by the "candidate" either in "person" or by his "proposer". This shows that a person, who claims to get elected by submitting the nomination and proceeding to meet the Returning Officer on the prescribed date, is sought to be described as a "candidate", even before submitting the nomination. Statute 36 also makes a similar description in so far as it enables the "candidate" or his "representative" appointed in writing and approved by the Returning Officer, to be present at the time of scrutiny of nomination i.e., before declaring the validity of the nomination. Similarly, Statute 37 enables the Returning Officer to reject the nomination also on the ground (a) that the "candidate" is ineligible for election under sub-section (1) of Section 33 of the Ordinance (subsequently replaced by the Act), subject to the exceptions mentioned therein. Thus, going by the description of the person, who claims to be validly elected and submits a nomination has been recognized and sought to be described as a "candidate" and as such, definition of the term "candidate" under Statute 2 (1) (c) has to be read and understood in a liberal manner, so as to give effect to the other relevant provisions of the very same Statutes, virtually Statutes 35, 36 and 37 as well, without any conflict. This is the Rule of Harmonious Interpretation, which has been discussed in detail by this Court in Ismayil Vs. Deputy Tahsildar, Sub Inspector of Police, District Collector and State of Kerala,. 10. Statute No. 90 in Chapter V, under the heading 'Presentation of Election Petitions', also gives some idea as to the scope of the term "candidate". Statute 90 (1) is extracted below for the purpose of convenience of reference. 90. Presentation of election petition.--(1) An election petition calling in question any election may be presented within seven days of the declaration of the result of the election by any candidate at such election on- (a) one or more of the grounds specified in sub-section (1) of Section 33 of the Ordinance; or (b) that the result of the election has been materially effected; (i) by the improper reception or refusal of vote; or (ii) by any non-compliance with the provisions of the Ordinance or of any Statutes issued there under; or (iii) that the nomination of any candidate has been wrongly rejected or the nomination of the successful candidate or of any other candidate who has not withdrawn his candidature has been wrongly accepted. 11. Statute 90 (1) (b) (iii) makes it clear, point blank that any election petition can be presented within seven days of the declaration of the result of the election, on the ground that "nomination of any candidate has been wrongly rejected" or the nomination of the successful candidate or of any other candidate who has not withdrawn his candidature has been wrongly accepted. Improper rejection of any nomination, as well as imprudent acceptance of any nomination are shown as enabling grounds to file an election petition by any candidate "at any stage of election". The words used under Statutes 90 (1) enabling 'any candidate at such election' takes care of the grievance in respect of improper rejection of nomination as well. The terms "candidate in such election" naturally refer to the candidate, who submitted a nomination under Statute 35: whose nomination was subjected to scrutiny under Statute 36 and whose nomination came to be rejected under Statute 37. The terms "candidate in such election" naturally refer to the candidate, who submitted a nomination under Statute 35: whose nomination was subjected to scrutiny under Statute 36 and whose nomination came to be rejected under Statute 37. If there is a grievance for any such candidate that, there is non-compliance of the provisions of the Ordinance/'Act' or any Statutes issued there under, it still forms the subject-matter of an election petition under Statute 90, by virtue of the stipulation under Statute 90 (1) (b) (ii). As such, the apprehension of the petitioner that the petitioner does not have any statutory remedy, is not correct or sustainable. 12. Incidentally, this Court finds it relevant to refer to the meaning of the term 'candidate' as given in some authentic Dictionaries as well, to look at things in a better perspective. Black's Law Dictionary (9th Edition) defines the term "candidate" in the following terms: An individual seeking nomination, election or appointment to an office, membership, award, or like title of status. A candidate for election becomes a 'nominee' after being formally nominated. Advanced Law Lexicon (4th Edition) defines the term "candidate" as: Candidate means a person who has been nominated as a candidate at any election. Candidate at the election: The expression 'a candidate at the election' as used in R. 43 of Cantonment Electoral Rules includes a candidate whose nomination paper has been rejected. [Ramanarayanan Moluram v. Vishnu Krishna Rao ( AIR 1957 M.P. 20 )] Chambers 20th Century Dictionary gives the meaning of the word "candidate" in the following manner: one who offers himself for any office or honour Concise Oxford Dictionary (8th Edition) defines the meaning of the term "candidate" as: (1) a person who seeks or is nominated for an office, award etc. (2) a person or thing likely to gain some distinction or position. (3) a person entered for an examination. Strouds Judicial Dictionary (6th Edition) gives the meaning of "candidate" as: The correct sense of the word 'candidate' is a person offering himself to the suffrages of the people. Thus, even in common parlance, what is intended is the right and liberty of a person, who makes offer/claim or is even duly nominated/considered in the process. As such, a wider interpretation has to be given to the terms "candidate at election". Thus, even in common parlance, what is intended is the right and liberty of a person, who makes offer/claim or is even duly nominated/considered in the process. As such, a wider interpretation has to be given to the terms "candidate at election". This aspect has been considered by a Division Bench of the High Court of Rajasthan in the decision cited supra Gopal Singh Vs. The Election Tribunal-cum-Additional Civil Judge (S.D.),. The Bench has observed with reference to the relevant provisions of the Rajasthan Panchayati Raj (Election) Act, 1994 and the Rules there under and also with reference to the relevant provisions of the Representation of the Peoples Act, 1951, that a 'candidate' whose nomination has been improperly rejected by the Returning Officer has every right to question the same by way of election petition. 13. This Court does not find any support in favour of the petitioner, from the above decision Gopal Singh Vs. The Election Tribunal-cum-Additional Civil Judge (S.D.), cited from the part of the petitioner, particularly, with reference to Statutes 33 to 36 as discussed already. It was a case where, election of the Sarpanch was challenged by the candidate whose nomination was improperly rejected. In the course of proceedings, the Election Tribunal declared the issue in favour of the petitioner, holding that rejection of the nomination was improper. This was challenged by way of writ petition before the High Court of Rajasthan, wherein interference was declined by the learned Single Judge, which led to appeal preferred before the Division Bench. Dismissing the appeal, it was observed by the Bench in paragraph 39 as follows: In this view of the matter, we are unable to countenanced the submission of the learned Counsel for the appellant that the respondent No. 2 cannot be treated to be a duly nominated candidate at election. The person who has filed the nomination form in conformity with the relevant provisions of the Rules, 1994 has to be treated the candidate at such election and even if his nomination form is rejected by the returning officer or any ground he shall not ceased to be a candidate at such election in terms of Section 43 of the Act of 1994 and Rule 80 of the Rules, 1994. Consequently, a candidate whose nomination form has been improperly rejected by the returning officer has every right to question the election of the returned candidate by way of election petition. 14. A learned Judge of this Court also had occasion to consider the scope of the term "candidate", in the decision rendered in Sivadasan, K.G. Vs. P.V. Sivadasan. Referring to the relevant provisions in the Panchayat Raj Act, 1994 (Kerala) and the Representation of Peoples Act, 1951, the learned Judge observed in paragraph 10, that normally the person whose nomination happened to be rejected is the best person to challenge the result of the returned candidate, on the ground of improper rejection of his nomination; simultaneously adding that, if it is held that a person whose nomination was improperly rejected is not entitled to challenge the result on the ground that, he was 'not a candidate at such election', the same will lead to an absurd result and hence a liberal and wider meaning has to be given to the term 'candidate'. This Court fully concurs with the said finding. 15. The petitioner places reliance on the decision rendered by this Court in Kerala Public Service Commission Vs. State Information Commission, to contend that the 'interpretation clause' has to be read and understood as it is, without anything more; upon which Statute 2 (1) (c) will take the petitioner out from the purview of the term "candidate" and thereby disentitle him to seek the alternate remedy by way of election petition under Statute 90. This Court finds it difficult to agree to the said proposition. The observation made by the Bench in paragraph 7 is very relevant, which hence is extracted below: 7. In Commissioner of Sales Tax, State of Gujarat Vs. Union Medical Agency, the Apex Court stated that it is a well-settled principle that when a word or phrase has been defined in the interpretation clause, prima facie, that definition governs whenever that word or phrase is used in the body of the Statute. In Commissioner of Sales Tax, State of Gujarat Vs. Union Medical Agency, the Apex Court stated that it is a well-settled principle that when a word or phrase has been defined in the interpretation clause, prima facie, that definition governs whenever that word or phrase is used in the body of the Statute. But where the context makes the definition clause inapplicable, a defined word when used in the body of the Statute may have to be given a meaning different from that contained in the interpretation clause; all definitions given in an interpretation clause are, therefore, normally enacted subject to the usual qualification - 'unless there is anything repugnant in the subject or context', or 'unless the context otherwise requires'. Even in the absence of an express qualification to that effect, such a qualification is always implied. The meaning of a word or expression defined may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in definition section, namely 'unless the context otherwise requires'. In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words in a particular section. But where there is no obscurity in the language of the section, there is no scope for the application of the rule exvisceribus actus. This rule is never allowed to alter the meaning of what is of itself clear and explicit. As observed in Pandey and Co. Builders Pvt. Ltd. Vs. State of Bihar and Another, in view of the provision 'unless the context otherwise requires" in the definition clause, one may not stick to the definition, when the " provision in the interpretation clause shall lead to anomalous and absurd results. Such course shall not be resorted to otherwise. The Court cannot read anything into a statutory provision which is plain and unambiguous. A Statute is an edict of the legislature. The language employed in a Statute is the determinative factor of legislative intent. Such course shall not be resorted to otherwise. The Court cannot read anything into a statutory provision which is plain and unambiguous. A Statute is an edict of the legislature. The language employed in a Statute is the determinative factor of legislative intent. What has been observed by the Bench, referring to the law declared by the Apex Court on the point, is that it is a well-settled principle that when a word or phrase has been defined in the interpretation clause, prima facie, that definition governs whenever that word or phrase is used in the body of the Statute. But where the context makes the definition clause inapplicable, a defined word when used in the body of the Statute "may have to be given a meaning different from that contained in the interpretation clause" observing that definitions given in an interpretation clauses are normally enacted subject to the usual qualification "........unless there is anything repugnant in the subject or context" or "unless the context otherwise requires". The Bench also made it clear that, even in the absence of an express qualification to that effect, such a qualification is always 'implied'. The scope of Statute 2 (1) (c) defining the term "candidate" has already been discussed in detail, with reference to term "candidate" as it appears, enabling the party concerned to be described as a 'candidate', who is about to submit the nomination under Statute 35; with similar description as to the right of the person described as 'candidate' to be present at the time of scrutiny under Statute 36, and the rejection of nomination of such "candidate" by the Returning Officer as mentioned under Statute 37 (a) with further scope of the term enabling a candidate at election to prefer an election petition under Statute 90 where the right to prefer an election petition is clearly seen mentioned in respect of a person whose nomination has been rejected as well [as provided under Statute 90 (1) (b) (iii)]. This being the position, the law declared by the Division Bench as per the decision cited supra does not come to the rescue of the petitioner and it virtually stands against him, In the above circumstances, this Court finds that the apprehension expressed by the petitioner that he is not a "candidate" who can maintain an election petition under Statute 90 (1) by virtue of the restriction made under Statute 2 (1) (c) is held as wrong and unfounded. It is declared that the definition of the term "candidate" as given under Statute 2 (1) (c) has to be interpreted liberally, giving a wider meaning, so as to take care of the situation contemplated under Statutes 35, 36 and 37 and the condition envisaged under Statutes 90 (1) (b) of the Statutes and that the petitioner is entitled to prefer an Election Petition before the competent authority. Since declaration of the result as borne by Ext. P-1 schedule was to be done only on 16-4-2013 and since the petitioner had approached this Court by filing this writ petition as early as on 6-3-2013, the stipulation to have the Election Petition filed within 7' days from the date of declaration of result as given under Statute 90 (1), read with Statute 29, has to be given a meaningful effect. Since the time has elapsed during the pendency of the writ petition, the petitioner is set at liberty to file the same within 7' days from the date of receipt of a copy of this Judgment, if not already preferred; upon which, it shall be treated as a valid Election Petition to be accepted and proceeded with in accordance with the relevant provisions of law. The question whether rejection of the nomination is for a valid and sustainable ground, is left open to be considered and decided by the Statutory Authority in the Election Petition. Interference is declined and writ petition is dismissed.