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2014 DIGILAW 11 (KER)

Shailamma Issac v. Returning Officer

2014-01-02

K.SURENDRA MOHAN

body2014
Judgment : 1. The petitioner has filed this writ petition challenging Exts.P3 and P4 proceedings of the fourth respondent and the first respondent respectively pursuant to which the fifth respondent is proposed to be sworn in as the President of the second respondent Grama Panchayat. 2. As per Ext.P1 notification, a meeting of the Panchayat committee was convened on 27.12.2013 for electing the President of the Grama Panchayat. The first respondent conducted the election. The petitioner contested as a candidate of the Left Democratic Front (LDF) and the fifth respondent contested as a candidate of the United emocratic Front (UDF). Both the petitioner as well as the fifth respondent secured six votes each at the election. Since both the candidates had secured equal number of votes, the first espondent proceeded to select the successful candidate by the drawing of lots. The petitioner was declared elected. She was thereafter sworn in as the President of the Grama Panchayat. 3. The fifth respondent thereafter complained to the first respondent alleging that the procedure that was adopted for selecting the successful candidate was illegal. On the basis of the complaint, it is alleged that the Returning Officer had reportedly admitted the selection of the petitioner to be a mistake. The petitioner was immediately informed by Ext.P2 that she could assume office only after the fourth respondent decided the issue. Accordingly, Ext.P3 order has been passed on 30.12.2013. As per Ext.P3, the fourth respondent has found that procedure adopted for selecting the petitioner was wrong. Therefore, in exercise of the supervisory powers of the fourth respondent, the declaration of results as well as selection of the petitioner has been found to be ab initio void. The Returning Officer has therefore been directed to complete the proceedings from the stage of declaration of the result, in accordance with the rules. Pursuant to Ext.P3, the first respondent has issued Ext.P4 notifying that the fifth respondent would be sworn in as the President of the Panchayat at 11a.m. on 3.1.2014. 4. According to Adv.T.P.Pradeep who appears for the petitioner, the petitioner having been declared as the successful candidate and having been permitted to assume office after taking oath, her election could be set aside only after an adjudication by the fourth respondent under Section 153(14) of the Kerala Panchayat Raj Act,1994 (the 'Act' for short). 4. According to Adv.T.P.Pradeep who appears for the petitioner, the petitioner having been declared as the successful candidate and having been permitted to assume office after taking oath, her election could be set aside only after an adjudication by the fourth respondent under Section 153(14) of the Kerala Panchayat Raj Act,1994 (the 'Act' for short). It is also contended that the fourth respondent has no powers to set at naught the election that was already conducted. According to the counsel Exts.P3 and P4 are absolutely without jurisdiction and liable to be set aside by this Court. The parties are thereafter to be relegated to their proper remedy of approaching the Munsiff's Court for setting aside the election. 5. Adv.Murali Purushotham who appears for respondents 1 and 4 on the other hand contends that, action was not initiated by the fourth respondent on the basis of the complaint made by the fifth respondent but on the basis of a report submitted by the first respondent Returning Officer. A copy of the report has been handed over to me, across the Bar. In his report, the first respondent has informed the fourth respondent that he had by mistake, instead of proceeding under sub-rule 7(a) of Rule 9 of the Kerala Panchayat Raj (Election of President and Vice President) Rules, 1995 (the 'Rules for short), by mistake proceeded under sub-rule 7(c) of the said provision. As a consequence, the fifth respondent who had been rightfully elected as the President, was not declared elected. Instead, the petitioner had been declared elected. The said report is dated 27.12.2013. He had also addressed the fourth respondent on the same day seeking directions of the Election Commission as to how to proceed further in the matter. According to the counsel, the fourth respondent on an examination of the issue has found that an illegality had been committed. Therefore, Ext.P3 has been issued to set right the illegality. It is no doubt true that a party who wishes to challenge an election has to approach the Munsiff's Court invoking the remedy under Section 153(14) of the Act. However, the fourth respondent has the power in exercise of its supervisory position, to set right an illegality when it is brought to its notice, it is pointed out. It is no doubt true that a party who wishes to challenge an election has to approach the Munsiff's Court invoking the remedy under Section 153(14) of the Act. However, the fourth respondent has the power in exercise of its supervisory position, to set right an illegality when it is brought to its notice, it is pointed out. My attention is also drawn to the judgment of this Court dated 11.2.2009 in WPC 3538/2009 by which, a learned Single Judge of this Court has in similar circumstances, set aside an election finding that the same was vitiated by an illegality. Therefore, it is contended that the impugned proceedings are justified in the circumstances and are not liable to be interfered with by this Court. 6. Adv. Varghese M.Easo appears for the fifth respondent. According to the counsel, the fifth respondent is the rightfully elected President of the second respondent Panchayat. Therefore, the fifth respondent ought to have been sworn in as the President. Instead, by mistake, following a procedure that has no application to the circumstances, the petitioner had been declared elected. The fourth respondent has only set right the said illegality. 7. Heard. sub-rule(7) of Rule 9 of the Rules, reads as follows:- Votes "9. and The manner of recording of votes, conducting of declaration of result:-- (1) xxxxxxxxxxxxxx (2) xxxxxxxxxxxxxx (3) xxxxxxxxxxxxxx (4) xxxxxxxxxxxxxx (5) xxxxxxxxxxxxxx (6) xxxxxxxxxxxxxx (7) After the polling is over, the Returning Officer shall, in the presence of the members, count the ballot papers, declare as to which candidate each member has recorded his vote, then count the votes secured by each candidate and declare the result in the following manner, namely:- (a) If there are only two candidates then, the person who has secured more valid votes shall be declared to have been elected and in the event of both the candidates securing equal numbers of valid votes, lots shall be drawn in the meeting and the person whose name is drawn first shall be declared to have been elected. [(aa) In case where there are more than two contesting candidates and if one of the candidates has secured more votes than the aggregate votes secured by all the other candidates together the person who has got more votes shall be declared as elected.] candidates If and in the first polling no candidate (b) there are more than two contesting secures more votes than the aggregate votes secured by all the other candidates together, the candidate, who had secured the least number of votes shall be eliminated and the voting shall be continued by eliminating the candidate who secures more votes than those secured by the remaining candidate or candidates together, as the case may be, and the candidate who thus secures more vote shall be declared as elected. (c) If Two or more candidates secure equal number of votes and one of them has to be eliminated under clause (b), then the Returning Officer shall draw lot as to which candidate among the candidates who had secured equal number of votes is to be eliminated and the person whose name[(7a) is first drawn shall be eliminated. When voting at more than one phase has become necessary as per clause (b) of sub-rule (7) ballot papers of different colours shall be used at each phase of voting and the Returning Officer shall record on the ballot papers, the phase of voting at which they are used and the procedure specified in sub-rules (1), (2), (3) and (7) shall be followed at each phase of voting.] " (Emphasis supplied) A perusal of the above provisions show that different procedures are prescribed in the different situations that are contemplated. In the present case, both the petitioner as well as the fifth respondent had got six votes each. Therefore, the procedure of drawing of lots was adopted under sub-rule 7 to select the successful candidate. It is not in dispute that the fifth respondent's name was drawn first. However, by following the procedure contemplated by sub-rule 7(c), she was eliminated. A perusal of sub-rule (7)(c) shows that, the said provision is to apply only in a situation where there are two or more candidates securing equal number of votes. The said situation does not exist here . In the present case, admittedly, there were only two candidates. Therefore sub- rule 7(a) is the provision that is applicable. A perusal of sub-rule (7)(c) shows that, the said provision is to apply only in a situation where there are two or more candidates securing equal number of votes. The said situation does not exist here . In the present case, admittedly, there were only two candidates. Therefore sub- rule 7(a) is the provision that is applicable. According to the said provision, the person whose name is drawn first shall be declared to have been elected. Therefore, it was the fifth respondent who should have been declared as elected, instead of being eliminated. However, by applying the wrong provision, the petitioner has been elected. The petitioner does not dispute the above legal position. 8. The contention of the counsel for the petitioner is that rightly or wrongly, the petitioner having been declared elected and having been permitted to assume office after taking the oath of office, the petitioner can be dislodged only after the Munsiff's Court passes appropriate orders under Section 153 (14) of the Act. It is also contended that the fourth respondent has no power to pass Ext.P3 order. In the above context, it is worth noticing that, a learned Single Bench of this Court has considered an identical issue in WPC 3538/2009. As per judgment dated 11.2.2009 referred to above, in view of a similar mistake that vitiated an election to the post of Vice President of another Grama Panchayat, the election has been set aside by this Court. A consequential direction to the Returning Officer to complete the election process in accordance with Rule 9(7)(a) of the Rules has also been issued. The election has been set aside since the same was found to be vitiated by a patent illegality in applying the relevant rule. 9. In the present case there is no challenge against the electoral process that has been concluded. The Electoral college has in the present case, failed to select the successful candidate. In other words, here is a case where the democratic process has failed to yield any result. In view of the above, the law has stepped in to resolve the stalemate. As contemplated by law, by the drawing of lots, a selection of the President has been conducted by the Returning Officer. The said selection can be conducted only in accordance with the provisions of the law that empowers the Returning Officer to do so. In view of the above, the law has stepped in to resolve the stalemate. As contemplated by law, by the drawing of lots, a selection of the President has been conducted by the Returning Officer. The said selection can be conducted only in accordance with the provisions of the law that empowers the Returning Officer to do so. The Returning Officer has committed a patent illegality in adopting the procedure. Consequently, the person who should have been rightfully elected in accordance with law has been eliminated and an ineligible person, the petitioner herein, has been declared elected. To permit the situation to continue would be, to perpetuate the illegality, which would be unfair and against the principle of Rule of Law. Therefore, it is only appropriate that the mistake is set right at the earliest and the rightful claimant restored to the post at the earliest. Exts.P3 and P4 proceedings are intended only to achieve the above purpose. I do not find any justification for relegating the fifth respondent to the remedy of invoking Section 153(14) of the Act. It has to be borne in mind that during the pendency of the said proceedings not only that the rightful claimant to the post of President would be kept out of office but an ineligible person would be permitted to continue in office. The said consequence is to be avoided at any cost. 10. The counsel for the petitioner has put forward a further contention that in WPC 3538/2009 on which I have placed reliance, the election that was conducted has been set aside by this Court and a direction to conduct a fresh drawing of lots under Rule 9(7)(a) of the Rules has been issued. Therefore, it is contended that in this case also, it is a similar direction that has to be issued. I am not satisfied that any such direction should be issued in this case for the reason that, the Election Commission itself has, in this case taken note of the illegality committed and has directed the proceedings to be completed from the stage of declaration of the result. Therefore, in this case it is not necessary for me to set aside any election. I also notice that no such relief has been sought for by the petitioner. The relief sought for by the petitioner is only for setting aside Exts.P3 and P4. Therefore, in this case it is not necessary for me to set aside any election. I also notice that no such relief has been sought for by the petitioner. The relief sought for by the petitioner is only for setting aside Exts.P3 and P4. For the above reasons, I do not find any grounds to entertain this writ petition or to grant any of the reliefs sought for. The same is therefore dismissed.