IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMAN MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 WA.No. 1222 of 2009(P) ---------------------- AGAINST THE JUDGEMENT IN WPC.13926/2009 Dated 08/06/2009 .................... APPELLANT: 2ND RESPONDENT ---------------------------- PARAPPAN ABDULRAHIMAN, RESIDING AT PARAPPAN HOUSE, VENNIYOOR AMSOM, THIRURANGADI DESOM, P.O.VENNIYOOR, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SRI.C.R.REKHESH SHARMA RESPONDENTS: PETITIONER, R1,R3 TO R10 --------------------------------------- 1. V.V.KUNHUMUHAMMED, S/O.HAMZA, AGED 39 YEARS, VELLANAVALAPPIL HOUSE, CHEMMAD, TIRURANGADI PO., MALAPPURAM DIST. 2. RETURNING OFFICER, G71, TIRURANGADI GRAMA PANCHAYAT & ASSISTANT LABOUR OFFICER, TIRUR. 3. SELMA.C.M., W/O.JABBAR, CHUKKANMELOTTIL HOUSE, C.K.NAGAR, TRIKKULAM AMSOM DESOM, TIRURANGADI PO., MALAPPURAM DIST. PIN.676 306. 4. TIRURANGADI GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, TIRURANGADI PO., MALAPPURAM DIST. 5. STATE ELECTION COMMISSIONER, THIRUVANANTHAPURAM. WA. 1222/2009 2 6. ANWAR.K., S/O.KUNHALAN, KOORMATH HOUSE, CHULLIPPARA PO., VALAKKULAM VIA, PIN-676 508. 7. M.P.MOIDEENKUTTY, S/O.AHAMMED, TIRURANGADI AMSOM, VENNIYOOR DESOM, VENNIYOOR POST, PIN.676 508. 8. K.MOHAMMEDALI, S/O.KUNHAMMEDKUTTY, 'JAMU', P.O.TIRURANGADI AMSOM DESOM, TIRURANGADI PO., PIN.676 306. 9. M.MOHAMMED HASSAN, S/O.ISMAILKUTTY HAJI, MOOLATHIL HOUSE, P.O.PANTHARANGADI VIA, THIRURANGADI. 10. A.T.VALSALAKUMARI, ASANTHODI HOUSE, THRIKKULAM AMSOM, DESOM, P.O.PANTHARANGADI, VIA.TIRURANGADI. SRI.T.KRISHNANUNNI, SENIOR ADVOCATE FOR R1 ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R2,5 R4 BY ADVS. SRI.T.SETHUMADHAVAN, SRI.PUSHPARAJAN KODOTH & SRI.K.JAYESH MOHANKUMAR. SRI.P.V.KUNHIKRISHNAN FOR R1 R6 TO R10 BY ADVS. SMT.P.K.RADHIKA, SRI.VARUGHESE SIMON, SRI.V.MOHAMMED RAFIQ SRI.K.A.JALEEL FOR ADDL.R11-18 ADDL. R13, 14 & 15 BY ADVS. SRI.R.SUDHISH & SMT.M.MANJU THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J. & P.R. RAMAN, J. = = = = = = = = = = = = = = = WRIT APPEAL NO. 1222 OF 2009 = = = = = = = = = = = = = = = = = = DATED THIS, THE 22ND DAY OF MARCH, 2010. J U D G M E N T J. Chelameswar, C.J. This is an appeal against the judgment dated 8th June, 2009, in W.P. (C) No. 13926 of 2009, by the second respondent in the writ petition. 2. The facts leading to the litigation are as follows: The election to the office of the president of the 4th respondent Panchayat was due and a meeting for that purpose was convened on 19.5.2009 at 11 AM. The writ petitioner and the present appellant were the two contesting candidates to the said post. 3. It is an admitted fact that in all, there were 21 voters constituting to the electoral college. All the 21 voters were present at the meeting. Ballot papers were issued to the voters in terms of the Kerala Panchayath Raj (Election of President and Vice- President) Rules, 1995, more specifically, Rule 9 thereof. Sub Rule (3) of Rule 9 reads as follows: "Every member shall, immediately on receipt of the ballot paper put the mark 'X' on the ballot paper against the name of the candidate for whom he intends to vote and hand over the ballot paper to the Returning Officer after writing his name and signature on the reverse side of the ballot paper." WA 1222/2009 2 The aforementioned rule is in tune with the requirement of Section 153 of the Kerala Panchajat Raj Act,1994. Sub-section (7A) of Section 153 reads as follows. "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." 4. Eventually, when the ballot papers were collected by the Returning Officer, he found that only 20 ballot papers were received by him and one ballot paper went missing. There is some controversy with regard to the manner in which the said one ballot paper were missing. But it is an admitted fact that the missing ballot paper was that of a member by name Smt. Selma. It appears from the record that the Returning Officer called upon the said voter to make an application praying for issuance of a fresh ballot paper along with her version as to how her ballot paper went missing. The above mentioned Selma declined to give such an application. In the above mentioned background, a section of the voters demanded that the result of the election be declared on the basis of the available ballot papers while another section demanded postponement of the election and conduct of a fresh election. In these circumstances, the Returning Officer reported to the Election Commission telephonically. Upon receipt of such WA 1222/2009 3 telephonic complaint, the Election Commission directed the Returning Officer to keep the election process in abeyance. On receipt of the telephonic instructions, the Returning Officer notified it of the voters as follows: "Thirurangadi Grama Panchayat election process on 19.5.2009 for electing the President and Vice President was unable to be completed due to some specific reason and it is hereby informed to you that based on the direction received when contacted from the State Election Commission that the said election has been postponed to a future date as and when the Election Commission directs." 5. Challenging the above mentioned notice, one of the contesting candidates for the post of President, approached this Court with the writ petition out of which this writ appeal arises. 6. By judgment under appeal, the learned Judge declared that the impugned notice Ext.P4 has only an effect of adjourning the meeting held on 19.5.2009. The decision of the Election Commission to postpone the election process was found unsustainable and consequentially, directed the Election Commission to fix a date to continue the meeting dated 19.5.2009 and declare the result of the election to the post of President already held. The relevant portion of the judgment reads as follows: "In the result, it is declared that Ext.P4 results only in the adjournment of the meeting WA 1222/2009 4 which was already commenced on 19.5.2009 and that meeting shall be concluded on a nearest possible date as may be fixed by the Commission, for the continuance of that meeting. Ext.P4, in so far as it contains any decision stopping the electoral process that commenced on 19.5.2009, is quashed to pave way for fixing a date to continue with the meeting which commenced on 19.5.2009 in terms of the above declaration. The State Election Commission and the Returning Officer are directed to fix a date at the earliest for such purpose and declare the result of the election to the post of President in terms of the votes already polled and then, continue with the election of the Vice-President which was also an item in the agenda for the meeting dated 19.5.2009. The writ petition is ordered accordingly. No costs." 7. Aggrieved by the said decision, one of the candidates at the election, who was the second respondent in the writ petition, preferred this appeal. Sri.K. Ramakumar, learned counsel appearing for the appellant argued that the decision of the Election Commission, as evidenced by Ext.P4 is a part of the process of the election to the Grama Panchayat and the same could not be interfered with by this Court in exercise of the jurisdiction under Article 226 of the Constitution of India, in view of the specific bar contained under Article 243 (O) of the Constitution of India read with Section 153 (14) of the Kerala Panchayat Raj Act which provides for resolution of all election disputes by way of an election petition. WA 1222/2009 5 Article 243 (O) of the Constitution of India which is relevant for the purpose reads as follows: "243-O. Bar to interference by courts in electoral matters.-- Notwithstanding anything in this Constitution -- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243K, shall not be called in question in any court. (b) No election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State." Sub-section (14) of Section 153 of the Kerala Panchayat Raj Act reads as follows: "Where a dispute arises as to the validity of an election of President or Vice-President of a Panchayat, any member of that Panchayat may file a petition, -- (a) in the case of Village Pachayat, before the Munsiff Court having jurisdiction over the area in which its headquarters is situated; (b) in the case of Block Panchayat or District Panchayat, before the District Court having jurisdiction over the area in which its headquarters is situated, for decision and such decision shall be final. [(14a) The validity of the election of the President or the Vice-President of a Panchayat shall not be called in question for the reason of any vacancy in the place of the members or who shall WA 1222/2009 6 elect President or Vice-President for the reason of the absence of any member.]" 8. On the other hand, learned counsel Sri. T. Krishnanunni appearing on behalf of the respondent submitted that the decision to postpone an election by the Election Commission is not dispute as to the validity of an election. The election petition contemplated under Sub- section (14) of Section 153 of the Kerala Panchayat Raj Act and Article 243 is only a remedy provided for calling in question a concluded election. It is further submitted that the authority of the Election Commission to conduct an election includes the authority of superintendence, direction and control of the preparation of electoral rolls and conduct of the election which is independent of the rights of the contesting candidates as well as the voters and therefore, any irregularity in such superintendence or conduct of the election cannot be the proper subject matter of an election dispute contemplated under Sub-section (14) of Section 153 of the Kerala Panchayat Raj Act. 9. Article 329 (b) of the Constitution of India consists a similar bar in the conduct of the elections to the Parliament and the Legislature of the States. The question whether the decision of the Election Commission of India to cancel a particular election to the Lok Sabha in a particular WA 1222/2009 7 constituency and conduct a fresh poll was amenable to the jurisdiction under Article 226 of the Constitution of India fell for consideration of the Supreme Court in Mohinder Sing Gill v. Chief Election Commissioner ((1978) 1 SCC 405). It was a case where the Election Commission, by advertisement dated 22nd March, 1977 cancelled the election to the 13th Parliamentary constituency and ordered fresh poll. The said notification was challenged by one of the contesting candidates at the said election. The High Court dismissed the writ petition and the matter was eventually carried to the Supreme Court. 10. The Supreme Court held that the bar under Article 329(b) is absolute and the High Court, exercising the jurisdiction under Article 226 could not have interfered with the decision of the Election Commission. While coming to the conclusion, the Supreme Court also took notice of the jurisdiction of the Election Tribunal constituted under the Representation of the People Act, more specifically, Sections 98 and 100 of the said Act and held as follows: "The Election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processual amplitude of power extends to directions to the Election Commission or other appropriate agency to hold a poll, to bring up the ballots or do other thing necessary for fulfilment of the jurisdiction to undo illegality and WA 1222/2009 8 injustice and do complete justice within the parameters set by the existing law." 11. However, the Supreme Court, in a later decision reported in Election Commission of India v. Ashok Kumar ((2008) 8 SCC 216), on an examination of the law on this aspect including Mohinder Singh Gill's case ((1978) 1 SCC 405), held that "the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law." 12. Coming to the facts of the present case, admittedly, there is no allegation of mala fides against the Election Commission or Returning Officer. The only plea appears to be that the impugned action of the Election Commission is an arbitrary action. The authority to conduct and superintend the elections is undoubtedly vested in the Election Commission, under Article 243K, which reads as follows: 243K. Elections to the Panchayats.-- The Superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. WA 1222/2009 9 (2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine: Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. In the conduct of an election, the Election Commission may come across innumerable situations which may require the Election Commission to take a decision suitable to the situation including decisions either to postpone a partly conducted election or to cancel a partly conducted election. In the instant case, the decision of the Election Commission to postpone the election is on the ground that one ballot paper was found missing. Nothing is placed before us to establish that the missing ballot paper went missing in view of some impermissible conduct on the part of the Returning Officer or the contesting candidates or the voters. If the election were to be postponed only on the ground that one of the ballot papers is missing without any further allegation that such missing is on account of some foul play in the election, no election can ever be conducted since any voter can simply tamper with the election by not polling the ballot paper or destroying it voluntarily. WA 1222/2009 10 13. We find from Ext.P4 that though the election is postponed, the poll as such is not cancelled. If the election is postponed including to conduct a re-poll, the said decision, for the above reason, is found to be arbitrary and without any basis of law. The learned Single Judge, in such circumstances, has moulded the relief accordingly. 14. We are in agreement with the conclusion reached by the learned Single Judge. Though various other reasons are also stated in support of his conclusion, in view of the reasoning as stated above, it is not necessary to examine the correctness of those reasons. In the result, the appeal lacks merit and is accordingly dismissed. J. CHELAMESWAR, (CHIEF JUSTICE) P.R. RAMAN, (JUDGE) knc/-