IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 WP(C).No. 31914 of 2008(Y) ----------------------------------------- PETITIONER(S): -------------------------- M.KRISHNA KUMAR, S/O.M.KESAVAN NAIR, KRISHNA PURI, FLIRICAN ROAD, MALAPARAMBA, KOZHIKODE. BY MR.P.RAVINDRAN, SENIOR ADVOCATE, BY ADV. MR. T.M.VELAYUDHAN. RESPONDENT(S): --------------------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA SPORTS COUNCIL, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, (RETURNING OFFICER), KOZHIKODE. 4. THE DISTRICT SPORT COUNCIL, KOZHIKODE. *ADDL.R5 TO R23 ARE IMPLEADED: R5. THE PRESIDENT, DISTRICT PANCHAYATH, KOZHIKODE. R6. THE DISTRICT COLLECTOR, CIVIL STATION, KOZHIKODE. R7. THE CITY POLICE COMMISSIONER, KOZHIKODE. R8. THE EXECUTIVE ENGINEER (BUILDING & ROADS)PWD,KOZHIKODE. R9. THE DEPUTY DIRECTOR COLLEGIATE EDUCATION,KOZHIKODE. R10. THE DEPUTY DIRECTOR OF GENERAL EDUCATION,KOZHIKODE. R11. THE CORPORATION MAYOR, CORPORATION OF KOZHIKODE, CALICUT. R12. THE SECRETARY, DISTRICT SPORTS COUNCIL, MANANCHIRA SQUARE, KOZHIKODE. Kss ...2/- ..2.... WPC.NO.31914/2008 Y R13. THE DISTRICT OFFICER, PUBLIC RELATIONS DEPARTMENT, CIVIL STATION, KOZHIKODE. R14. SRI.A.PRADEEP KUMAR, MLA, MLA QUARTERS, THIRUVANANTHAPURAM. R15. SRI.A.K.SASINDARAN, MLA, MLA QUARTERS, THIRUVANANTHAPURAM. R16. SMT. K.K.LATHIKA, MLA, MLA QUARTERS, THIRUVANANTHAPURAM. R17. SRI. P.T.A.RAHIM, MLA, MLA QUARTERS, THIRUVANANTHAPURAM. R18. SRI. RAOY JOHN V., PHYSICAL EDUCATION TEACHER, PHYSICAL EDUCATION COLLEGE, KOZHIKODE – 5. R19. SRI. BASIL.C.S., S/O.SRI. C.K.SCARIA, CHEMBATTU HOUSE, KODATHAI, THAMARASSERY, KOZHIKODE – 673 573. R20. KUM.ANJALI MOHANAN.P., MALATH HOUSE, PANAGAD, BALUSSERY, KOZHIKODE – 673 612. R21. DR.GOPINATH, ASSOCIATE PROFESSOR, MEDICAL COLLEGE, THULASSI, PUTHIYANGADI P.O., CALICUT – 21. R22. SRI.V.SREENIVASAN, 19/1931, BAJAN KOVIL LANE, CHALAPURAM, KOZHIKODE. R23. SMT. SHAMI.E., BABY NIVAS, METHALAKANDIPARAMBA, ODUMBARA, OLAVANNA, KOZHIKODE. (*ADDL.R5 TO R23 ARE IMPLEADED AS PER ORDER DTD. 6/11/08 IN I.A.NO.13985/08) R1 & R3 BY GOVERNMENT PLEADER R2 BY ADV. MR.PIRAPPANCODE V.S.SUDHEER,SC,SPORTS COUNSIL R11 BY ADV.MR.K.D.BABU,SC,KOZHIKODE CORPORATION R5,12,18-23 BY ADVS.MR.T.R.RAVI, MR.P.S.MURALI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2009, THE COURT ON 25/02/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.31914/2008 Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTIFICATION DTD. 15/10/2008. EXT.P2: COPY OF THE COMMUNICATION ISSUED BY THE GOVERNMENT TO THE SECRETARY, SPORTS COUNCIL DTD. 25/10/08. EXT.P3: COPY OF THE COMPLAINT DTD. 31/10/08. EXT.P4: COPY OF THE COMPLAINT DTD. 31/10/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC,J. ----------------------- W.P.(C).No.31914 OF 2008 ------------------------ Dated this the 25th day of February, 2009. JUDGMENT The prayers in this writ petition are to quash Ext.P2 and to declare that the 3rd respondent is bound to conduct election to the Executive Committee of the 4th respondent in accordance with Rule 123 of the Sports Rules, 2008 (here-in-after referred to as 'the Rules' for short) and to declare that the election held on 31.10.2008 is null and void, being held in violation of the Rules. 2. Briefly noted the facts of the case are that, the 4th respondent is a District Sports Council constituted in terms of Section 9 of the Kerala Sports Act 2000 (Act 2 of 2001). Section 11 of the Act provides for the constitution of an Executive Committee of the 4th WP(c).No.31914/08 - : 2:- respondent. Section 45 confers power on the Government to make rules and Sub Section 2(a) there of provides for framing of rules on all matters connected with election or nomination of members by the State Sports Council or the District Sports Council. In exercise of the power conferred on the Government under Section 45 of the Act, Government have framed Kerala Sports Rules, 2008. Rule 123(1) provides that in an election to the Standing Committee or Executive Committee, the Returning Officer shall give ballot paper to the elected members of the Sports Council. Petitioner contends that in terms of Section 9 of the Act, the District Sports Council consists of Ex-officio Members, Elected Members and Nominated Members. The submission made is that though there are 3 classes of members in the District Sports Council, in an election to be held to its Executive Committee, in WP(c).No.31914/08 - : 3:- view of the provisions contained in Rule 123(1) of the Rules, only the elected members have the right to cast their votes. It is stated that, ignoring Rule 123(1) of the Rules, Ext.P2 letter was issued by the first respondent, purported to be in exercise of its powers under Section 49 of the Act clarifying that all members of the District Council are entitled to cast their votes. It is stated that Ext.P2 is directly contrary to Rule 123(1) of the rules and therefore is invalid. 3. This contention of the petitioner is contradicted by the counsel appearing for the respondents. According to them, as per Section 11 of the Act, all members of the District Sports Council are entitled to cast their votes irrespective of whether they are ex-officio members, nominated members or elected members. It is contended that the provisions of the Act being so, there is a conflict between the WP(c).No.31914/08 - : 4:- provisions of the Act and the rules and that in such a situation, provisions of the Act will prevail over the Rules and if that be so, the clarification issued by the Government as per Ext.P2 is perfectly valid. 4. A reading of Ext.P2 shows that, according to the first respondent, all members of the District Council are entitled to cast their votes. It is not disputed by the respondents that, going by its terms, Rule 123(1) provides that the Returning Officer shall issue ballot papers only to the elected members of the District Sports Council. Therefore, if the validity of Ext.P2 is to be tested in the light of Rule 123 of the Rules alone, Ext.P2 is clearly against Rule 123(1) of the Rules. However, what is to be seen is whether Rule 123 (1) to the extent voting right is confined only to elected members, is contradictory to the provisions of the parent Act. It cannot be disputed that the rule is a WP(c).No.31914/08 - : 5:- piece of subordinate legislation. Subordinate legislation to be valid, has to be intra vires the parent statute. In this case, the question to be examined is whether Rule 123 is intra vires the Act. Section 11 of the Act provides that there shall be an Executive Committee of the District Sports Council consisting of its President, Vice President, Secretary and its members, elected by the District Sports Council from among its members, of whom one shall be a women. Section 9(4) provides that there shall be a President and Vice President for every District Sports Council elected from among the members of that council as may be prescribed. `Member' has been defined in Section 2(viii) of the Act, as a member of the District Sports Council. A reading of Section 11 read with Section 2(viii) shows that all members of the District Sports Council are entitled to participate in the voting to the Executive Committee. It WP(c).No.31914/08 - : 6:- has to be borne in mind that while using the word 'member' in Section 11, although the legislature was conscious that there are three classes of members in the District Sports Council, it did not draw any distinction or restrict the voting right to any particular class of members. Therefore, if the plain meaning of Section 11 is to be accepted, this court should hold that all members, irrespective of whether they are Elected, Nominated or Ex-officio, are entitled to vote in an election to the Executive Committee. 5. If the parent Act confers voting right on all members, a rule framed under the Act cannot take away that right and thus dilute the provisions of the Act. On the other hand, if the rule travels beyond or is contrary to the provisions of the Act, the rule will be invalid and the court will ignore the same when its enforcement is sought, even in the absence of a WP(c).No.31914/08 - : 7:- challenge to the Rule. In this context the Apex Court judgment in Bharathidasan University & another V. All India Council for Technical Education and Ors.(2001(8) SCC 676), where para 14 to the extent relevant, reads as follows. “The fact that the Regulations may have the force of law or when made have to be laid down before the legislature concerned does not confer any more sanctity or immunity as though they are statutory provisions themselves. Consequently, when the power to make regulations is confined to certain limits and made to flow in a well-defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the courts are bound to ignore them when the question of their enforcement arises and the mere fact that there was no specific relief sought for to strike down or declare them ultra vires, particularly when the party sufferance is a respondent to the lis or proceedings cannot confer any further sanctity or authority and validity which it is shown and found to obviously ad patently lack. It would therefore, be a myth to state that Regulations made under Section 23 of the Act have “constitutional” and legal status, even WP(c).No.31914/08 - : 8:- unmindful of the fact that any one or more of them are found to be not consistent with specific provisions of the Act itself. Thus, the Regulations in question, which AICTE could not have made so as to bind universities/UGC within the confines of the powers conferred upon it, cannot be enforced against or bind a University in the matter of any necessity to seek prior approval to commence a new department or course and programme in technical education in any university or any of its departments and constituent institutions. 6. In view of this, I must accept the contention of the respondents that Rule 123(1), to the extent it confines voting right only to elected members, is contrary to Section 11 of the Act and therefore section 11 will prevail over the Rules. In that view of the matter I should hold that all members are entitled to vote to the Executive Committee and consequently, the clarification offered by the Government in Ext.P2 necessarily has to be up held as it is consistent with the provisions of the Act. WP(c).No.31914/08 - : 9:- 7. Yet another contention urged by the learned counsel for the petitioner is that, though the District Collector was appointed as the Returning Officer, he had delegated his duties to one Smt. Rema Devi. It is averred in paragraph 7 of the writ petition that on the election date, Smt. Rema Devi arrived at the Polling Station and declared that the Returning Officer had authorised her to conduct the election. It is stated that despite objections, she acted as the Returning Officer and insisted that every voter should write their name and membership number on the reverse side of the ballot paper while casting their votes. Petitioner submits that this was also objected to by him, but however brushing aside such objections, the election was conducted. Petitioner also says that in view of the above, he and some others, did not cast their votes. WP(c).No.31914/08 - : 10:- 8. Two issues arise from the above submissions made by Sri. P. Ravindran, Learned Sr. Counsel for the petitioner. One is that the Returning Officer had delegated his duties to Smt. Rema Devi and that in the absence of any provision enabling such delegation, the election conducted by his delegate Smt, Rema Devi is null and void. The other contention is that the insistence of Smt. Rema Devi that every voter should write their name and membership number on the reverse side of the ballot paper was against the mandate of Rule 101(2)(iii) and that if the direction of the Returning Officer was complied with, the vote would be rendered liable for rejection. On this count also, according to the petitioner, the election is liable to be invalidated. 9. As far as the contention that the Returning Officer had delegated his duties to Smt. Rema Devi, WP(c).No.31914/08 - : 11:- Deputy Collector is concerned, in the counter affidavit filed on behalf of the 3rd respondent this allegation is admitted in paragraph 10 thereof. It is stated that the District Collector had authorized Smt. Rema Devi, Deputy Collector (Election) as per order No.9303/08 dated 29.9.2008 and that Smt. Rema Devi is also the authorized officer to conduct election in Kozhikode District. The question that survives to be examined is whether such delegation was permissible in view of the provisions contained in the Act and Rules framed there under. Neither the counsel for respondents 3 and 4 nor the counsel appearing for the party respondents, could point out any provision either in the Act or in the Rules enabling the Returning Officer to delegate his duties. It cannot be disputed that, in the absence of an enabling provision to delegate duties of the Returning Officer, any delegation is impermissible. If that be so, WP(c).No.31914/08 - : 12:- the Returning Officer's order delegating his duties to his subordinate Smt. Rema Devi, Deputy Collector (Election) to conduct election to the Executive Council of the 4th respondent cannot be upheld. 10. Then what remains is the contention that Smt. Rema Devi insisted that every voter should write their name and membership number on the reverse of the ballot paper while casting the votes. The factual correctness of this contention is also not disputed. In support of the contention that it was impermissible, while the counsel for the petitioner relied on Rule 101 (2)(iii) of the Rules, the counsel for the respondents relying on Rule123(2) sought to justify the action of Smt. Ramadevi. These rules occur in Chapter IX of the Rules, laying down the procedure for election. Rule 101(2) provides that the ballot paper is liable to be rejected in the circumstances pointed out in the said WP(c).No.31914/08 - : 13:- sub rule. Rule 101(2)(iii) provides that if a voter writes his name or any words or put any other marks in a ballot paper disclosing his identity, such ballot paper is liable to be rejected. While Rule 101 provides as above, Rule 123(4) provides that in an election to the Executive Committee, if a voter does not mark his vote in a ballot paper or vote for more candidates than the number of candidates to be elected, or does not write his name and affix his signature on the reverse side of the ballot paper such ballot papers are liable to be rejected and kept in a separate cover. 11. Here, there is an apparent conflict between the provisions contained in Rule 101(2)(iii) and 123(4). In this context it needs to be noticed that Rule 114 which deals with the election of the President and Vice President also provides in Sub Rule(3) that voters should write their name and affix signature on the WP(c).No.31914/08 - : 14:- reverse side of the ballot paper. Rule 115 provides that non compliance with Rule 114(3) will render the vote liable for rejection. On a comparison of these provisions contained in the Rules, it can be seen that though the general provision, viz Rule 101(3), provides for rejection of ballot paper in the circumstances mentioned therein, Rule 123 has to be understood as a specific provision detailing the procedure to be followed in the election to the Standing Committee or Executive Committee, as the case may be. In such cases, any ballot paper, which do not carry the name and signature of the voter, is liable for rejection. This being the manner of voting prescribed in exercise of the power conferred under Section 45(2) (a) of the Act, the court is bound to give full effect to such a provision, particularly in a case like this where, not only that there is no challenge to the Rule, but also that the WP(c).No.31914/08 - : 15:- petitioner seeks a declaration that the election should be held in accordance with Rule 123 of the Rules. 12. Although, I have upheld the interpretation to the provisions of the Act and Rules as reflected in Ext.P2, in view of the fact that the Returning Officer could not have delegated his duties to anybody else, I am inclined to declare that the election that was held to the Executive Committee of the 4th respondent on 31.10.2008 to be illegal. Therefore the writ petition is disposed of with the following directions. I. That Ext.P2 issued interpreting the provisions of the Act and the Rules is legal and is upheld. ii. The election to the Executive Committee of the 4th respondent held on 31.10.2008 is declared invalid. iii. The Returning Officer shall conduct election in the manner as contemplated in the Act and in Rule WP(c).No.31914/08 - : 16:- 123 of the Rules. iv. The Returning Officer shall take expeditious steps to conduct election and declare results without any further delay. (ANTONY DOMINIC) JUDGE vi/