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2019 DIGILAW 782 (KER)

Hema Prahaladan v. State Of Kerala

2019-09-27

DEVAN RAMACHANDRAN

body2019
JUDGMENT : 1. The petitioner decries the elections conducted by the 2nd respondent-State Election Commission to one of the Standing Committees of the 4th respondent-Corporation of Cochin, assailing the method and manner adopted by it in the said process-asserting that since there was only one vacancy to be filled up, the Election Commission ought to have issued single preference ballot paper to the voters than multiple preference ones, as has been done by them. 2. The petitioner states that she is an elected Counsellor of the Corporation of Cochin and that, on account of the demise of another member, there arose a casual vacancy in its Standing Committee for Taxation and Finance. She says that she, therefore, offered herself as a candidate to the consequent elections, along with the 5th respondent herein, but that in the polling that took place thereafter, the latter was declared elected, since he secured more votes. 3. The petitioner, however, alleges that the process adopted by the State Election Commission while conducting the said election was contrary to the Kerala Municipalities Act, 1994 ((herein after referred to as 'the Act' for short) and the Kerala Municipality Standing Committee Rules, 2000 ((herein after referred to as 'the Rules' for short) and therefore, that the elections be set aside or declared to be null and void. 4. Sri.C.S.Ajith Prakash-learned counsel appearing for the petitioner, opened his submissions by referring to Section 21(2) of the Act and Rules 7(4) and 9(2) of the Rules. According to him, when there occurs only one vacancy, then the State Election Commission ought to have used only a single preference ballot paper, in which voters mark their choice of their candidate using an 'x' mark. He contends that, as is manifest from Rule 9 of the Rules, if more than one casual vacancy occurs at a time in a Standing Committee, then such vacancies must be filled up in a 'single voting', which should be interpreted to mean 'single transferable vote' and therefore, that in any other situation, namely, when only one vacancy arises, the election must be conducted using a single preference ballot paper. He thus exhorts this Court to set aside the election conducted by the Election Commission, since it has been completed using ballot papers in which multiple preferences were permitted. 5. He thus exhorts this Court to set aside the election conducted by the Election Commission, since it has been completed using ballot papers in which multiple preferences were permitted. 5. Sri.Murali Purushothaman, learned Standing Counsel for the Election Commission, submits that the assertions and allegations of the petitioner as afore are wholly flawed, going by the substantive provisions of the applicable Section of the Act, which is Section 21(3). He says that, as is ineluctable there-from, every election to a Standing Committee shall be conducted by single transferable voting and that this is made further irrefutable by Section 7(4) of the Act, wherein again, it provides that the voting shall be done under the system of proportional representation, using single transferable vote. He says, therefore, that whatever be the number of vacancies, be that one or more, the Election Commission can only go by these imperative statutory provisions and allow the polling to be done under the system of proportional representation through single transferable votes. 6. Thereafter, as regards the afore recorded submissions of Sri.Ajith Prakash edificed on Rule 9(2) of the Rules, Sri.Murali Purushothaman asserts that the word 'single voting' mentioned in the said Rule can only be interpreted to mean a single polling and not a 'single transferable vote', because otherwise, it will lead to interpretational absurdity. He, consequently, prays that this Writ Petition be dismissed. 7. I have considered the afore submissions and have also searchingly examined the provisions applicable. 8. It is luculent and uncontested that the manner of conduct of elections to the Standing Committee of a Municipal Corporation is guided exclusively by Section 21 of the Act, the 3rd sub section of which reads as under: In every Standing Committee, there shall be members elected by the councillors from among themselves under the proportional representation system by single transferable vote and no Councillor shall be a member of more than one Standing Committee at the same time. 9. After mandating as afore, sub Rule 4 of Rule 7 of the Rules prescribe as below: If the number of candidates is more than the number of seats vacant, the members present in the meeting shall elect the members to the seats vacant in accordance with the system or proportional representation by single transferable vote, by conducting election under Rule 8. 10. 10. It is thereafter that Rule 9 is endrafted in the Rules, which stipulates in the following manner: 9. Filling up of casual vacancies-(1) The [returning officer] shall, on the occurrence of a casual vacancy of a member in a Standing Committee, convene a special meeting of the elected members of the Municipality within the time given under sub- section(8) of Section 21 and conduct election in accordance with the procedure under Rule 7 and 8 for the purpose of filling up the vacancy. (2) If more than one casual vacancy occur at a time in a Standing Committee, the vacancies shall be filled up in a single voting. 11. On a conjoined reading of these provisions, it becomes overt that there is hardly any confusion possible as regards Section 21(3) of the Act or Rule 7 of the Rules because these provisions render it mandatory that the Election Commission shall conduct elections to a Standing Committee or to any vacancy arising therein solely adopting proportional representation voting using a single transferable vote. To further reinforce this, in Rule 9(1) of the Rules, it ingeminates that the elections to the Standing Committee shall be conducted in accordance with the procedure under Rules 7 and 8, even for the filling up of occurring casual vacancies. 12. Thus, it is in the backdrop of the afore statutory scheme that one will have to assess the ambit of sub Rule 2 of Rule 9, which says that if there are more than one casual vacancy in a Standing Committee, they shall be filled up by a 'single voting'. 13. As recorded above, this provision is sought to be interpreted by Sri.Ajith Prakash by contending that the word 'single voting' should be construed as 'single transferable vote' and therefore, that if there is only one vacancy, then elections must be conducted using a ballot paper in which only a single preference can be noted, by marking an 'x' against the name of the candidate of a voter's choice. 14. When I consider the above submissions of Sri.Ajith Prakash, it becomes perspicuous that he is edificing them on the words 'single voting' as used in Rule 9(2) of the Rules, asserting that it means 'single transferable vote'. 15. 14. When I consider the above submissions of Sri.Ajith Prakash, it becomes perspicuous that he is edificing them on the words 'single voting' as used in Rule 9(2) of the Rules, asserting that it means 'single transferable vote'. 15. However, when one looks carefully at the afore provisions in totality, the words 'single voting' in Rule 9(2) can only mean a 'single event' or a 'single polling', since otherwise, it would be unnecessary to have specified so therein. It is ineluctable that the Rule makers clearly intended that when there are more than one vacancy occurring, there need not be separate polling to fill up each of such vacancies, but that all of them can be filled up by 'one voting', which is to mean one polling. This is the only manner in which the said sub Rule can be understood and the attempt of the petitioner to interpret the words 'single voting' to mean 'single transferable vote' is completely beyond reason. 16. This is all the more pellucid because if the true intention of the Rule makers was to provide that when there occurs only one casual vacancy, voting shall be done using single preference ballot paper, then it could have been so specifically stated in the said Rule, rather than employing the words 'single voting' as is presently done. I cannot, therefore, find favour with this contention of the petitioner as impelled by Sri.Ajith Prakash. 17. That having been said, there is yet another equally compelling reason why this Court is not persuaded to accept the submissions made on behalf of the petitioner because, admittedly, there was only one vacancy that arose in the Standing Committee concerned. Therefore, whether the ballot paper used was a single preference one or one that provided for multiple preferences, makes no difference because, either way, the candidate who obtained the maximum number of votes as first or sole preference would stand elected and the other would stand eliminated, since the further preferences indicated in the votes obtained by the elected candidate would be of no effect, there being no other vacancy to fill. 18. 18. Therefore, I fail to comprehend why the petitioner should have challenged the election in this manner, it being, at the best, an academic exercise because, in any event of the matter and even assuming that this Court finds in favour of the petitioner, she would still not win the election since, concededly, the 5th respondent obtained more number of first preference votes than her, which would have been no different even if the ballots had provided only for a single preference. In such view of the matter, I see no reason to entertain this Writ Petition and deem it apposite, therefore, to dismiss it; however, without making any order as to costs. It is so ordered.