IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 WP(C).No. 3538 of 2009(U) ------------------------- PETITIONER(S): --------------- KODAMANA SUBRAMANIAN, MEMBER, KADANGODE GRAMA PANCHAYATH, THALAPPILLY,THRISSUR BY ADV. SRI.P.C.SASIDHARAN SRI.ALPHONS D XAVIER RESPONDENT(S): --------------- 1. STATE ELECTION COMMISSIONER OFFICE OF KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. 2. RETURNING OFFICER, G-16, KADANGODE GRAMA PANCHAYATH, ASSISTANT REGISTRAR OF CO.OP. SOCIETIES (GENERAL), THALAPPALLY, THRISSUR) 3. BASHEER.M.S., MEMBER, KADANGODE GRAMA PANCHAYATH, WARD NO.17, R/AT.MADAPPATTU PARAMBIL THALAPPILLY, THRISSUR. 4. PRESIEENT, KADANGODE GRAMA PANCHAYATH, KADANGODE, THRISSUR. 5. STATE OF KERALA, REP.BY THE ITS SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 & 2 SRI.SANTHEEP ANKARATH FOR R3 GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 3538/2009. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE OBJECTION DTD.28.1.09. P2. COPY OF THE REPLY BY R2 DTD.29.1.09. P3. COPY OF THE REPRESENTATION DTD.30.1.09 BY R1. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.3538 of 2009 ================== Dated this the 11th day of February, 2009 J U D G M E N T The petitioner was a candidate for election to the post of Vice President of the Kadangode Grama Panchayat in the election held on 28.1.2009. There are 17 elected members of the Panchayat and all of them attended the meeting convened for election. In the election conducted one vote was declared as invalid and as a result, both the petitioner as well as the 3rd respondent secured equal number of votes, viz., 8 votes each. Thereafter, the Returning Officer drew lots for deciding the elected candidate. The petitioner's name was drawn first. However, applying Sub Rule 7(c) of the Rule 9 of the Panchayat Raj Act, the Returning Officer eliminated the petitioner from the contest and declared the 3rd respondent as elected and an objection was preferred by the proposer of the petitioner to the Returning Officer. The The Returning Officer ruled that it is sub rule 7(c) of the Rule 9 of the Kerala Panchayat Raj (Election of President & Vice President) Rules (“Rules” for short) which is applicable. The petitioner's contention is that what is applicable is sub rule 7(a) of Rule 9 of the Rules and sub rule 7(c) is applicable only in cases covered by sub rule 7(b). As per sub rule 7(a), the person whose name is drawn in the lot is entitled to be declared as elected. 2. I have heard all parties. w.p.c.3538/09 2 3. Sub rule 7 of Rule 9 of the Rules reads thus: “9. The manner of recording of votes, conducting of votes and declaration of result. - (1) ... xxx xxx xxx xxx (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 others candidates together the person who has got more votes shall be declared as elected. (b) If there are more than two contesting candidates and in the first polling no candidate 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 is first drawn shall be eliminated.” Obviously sub rule 7(b) applies only when there are more than two contesting candidates and in first polling no candidate secures more vote than the aggregate secured by all other candidates together whereas, sub rule 7(a) relates to a situation where there were only two candidates and both candidates secure equal number of valid votes. Therefore, since in this case there were only two candidates, w.p.c.3538/09 3 clearly sub rule 7(a) is the one applicable and the Returning Officer has applied sub rule 7(c) wrongly. In the above circumstances, the petitioner is entitled to succeed in this writ petition. Accordingly, the election of the 3rd respondent is set aside and the Returning Officer, viz., 2nd respondent, is directed to complete the election process in accordance with sub rule 7(a) expeditiously. Writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge