IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 WP(C).No. 30874 of 2008(A) -------------------------- PETITIONER(S): --------------- KRISHNA RAMANI, S/O. PAZHANISWAMI, KULUKKAPPARA KOZHINJAMPARA GRAMA PANCHAYATH, PALAKKAD DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): --------------- 1. THE STATE ELECTION COMMISSION, THIRUVANANTHAPURAM, REPRESENTED BY THE SECRETARY. 2. THE RETURNING OFFICER, KOZHINJAMPARA GRAMA PANCHAYATH, G-18, KOZHINJAMPARA, PALAKKAD DISTRICT. 3. THE ASSISTANT RETURNING OFFICER, KOZHINJAMPARA GRAMA PANCHAYATH, G-18, KOZHINJAMPARA, PALAKKAD DISTRICT. 4. PREMADAS.S, S/O. SHANMUGHAN, THANAKKULAM, KUKUKKAPPARA, PALAKKAD DISTRICT. 5. THE KOZHINJAMPARA GRAMA PANCHAYATH, KOZHINJAMPARA, PALAKKAD DISTRICT, REPRESENTED BY THE SECRETARY. ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 SRI.P.VIJAYA BHANU FOR R4 SRI.M.GEORGE THOMAS FOR R4 SRI. THOMAS J. ANAKKALUNKAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 30874/2008 ------------------------------------------------------------------ EXT.P1 TRUE COPY OF ELECTION NOTIFICATION. EXT.P2 LIST OF SEVEN VALID NOMINATIONS. EXT.P3 APPLICATIONS GIVEN BY SIX CANDIDATES. EXT.P4 LIST OF CANDIDATES. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 30874 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 29th October, 2008. J U D G M E N T This writ petition relates to a by-election to fill up a casual vacancy in Ward No. 4 of the Kozhinjampara Grama Panchayat in Palakkad district. After the election process was set in motion, the petitioner and six others submitted nominations. After the scrutiny of nominations, a list of candidates who have submitted valid nominations was published. After publication of the list of candidates, the six candidates other than the petitioner submitted applications for withdrawal of their candidature. As a result, the petitioner became the only surviving candidate in the fray. However, the Returning Officer published Ext. P4 list of candidates including the petitioner and the 4th respondent. That action is under challenge in this writ petition. 2. According to the petitioner, as is evident from Ext. P3 series, all the other six candidates apart from the petitioner including the 4th respondent submitted notices withdrawing their candidature in the statutory form prescribed. Therefore, the Returning Officer had no option but to accept those notices and declare that the petitioner has been elected. The petitioner therefore seeks the following reliefs: “i) Issue a writ of certiorari calling for the records leading to the inclusion of the name of the 4th respondent in Ext. P4 and to quash Ext. P4 to that extent. ii) Issue a writ declaring that the Returning Officer has no authority to include the name of a candidate in the final list of candidates who has withdrawn the nomination and the inclusion of the name is unauthorized, impermissible and therefore bad in law. Iii) Pass an order directing the Returning Officer to declare that the petitioner is duly elected.” 2. Respondents 2 and 3 are the Returning Officer and the Assistant Returning Officer for the election. They have filed a counter W.P.C. No. 30874/2008 -: 2 :- affidavit to the effect that they have included the name of the 4th respondent in the list of contesting candidates on the belief that the 4th respondent has withdrawn only one of the two sets of nominations submitted by him and since the other nomination had not been withdrawn, the 4th respondent was included as a contesting candidate in the list published. The 1st respondent-Election Commission has filed a statement detailing the correct legal position regarding the procedure to be followed by Returning Officers in elections to local bodies. Each and every step of the election to be taken by the Returning Officers are detailed. In the same, they have categorically stated that as per Section 56 of the Kerala Panchayat Raj Act, what is contemplated is not withdrawal of a nomination but withdrawal of candidature. They also point out that in form no. 5 appended to the Kerala Panchayat Raj (Conduct of Election) Rules also, the form prescribed is for notice for withdrawal of the candidature and not for withdrawal of nomination. It is further pointed out that as per sub- section (2) of Section 56, once a candidate gives notice of withdrawal of his candidature, he has no option thereafter to withdraw or cancel the said notice. Notice of withdrawal of candidature is irrevocable. The procedure to be adopted by the Returning Officers after accepting notices for withdrawal of candidature is also elaborately stated. If, after the withdrawal of candidature only one candidate remains, the Returning Officer has to declare the only candidate remaining in the fray to have been validly elected, after the expiry of the time fixed for withdrawal of candidature, in form no. 7 of the Rules. The Commission also submits that in view of the decision of the Supreme Court in Ram Phal Kundu v. Kamal Sharma, (2004) 2 SCC 759, the Election Commission has no powers to issue directions to the Returning Officer regarding the acceptance, rejection of W.P.C. No. 30874/2008 -: 3 :- nominations and notice to withdraw candidature and that is why the Commission could not issue any instructions to the Returning Officers in this regard, although the fact had been brought notice to the Election Commission. 3. Learned counsel for the 4th respondent would submit that his intention was only to withdraw one of the two valid nominations and he never intended to withdraw his candidature. Counsel for the 4th respondent would also submit that the writ petition is not maintainable in so far as it is settled law that the remedy of the petitioner lies in filing an election petition after the election is over. 4. I have considered the rival contentions in detail. 5. Since the 4th respondent raises an objection regarding the maintainability of the writ petition itself, I shall deal with that contention first. 6. The Supreme Court has, in Election Commission of India v. Ashok Kumar and others, (2000) 8 SCC 216 categorically held that “without interrupting, obstructing or delaying the progress of the election proceedings , judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings , to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.” I am satisfied that this is a case squarely coming within the first limb of the said direction. The question as to whether all the candidates in the list of contesting candidates is entitled to be included as candidates is a matter which goes to the root of the election itself. Therefore, when a person who validly issues a notice for withdrawal of the candidature is included in the list of contesting candidates and W.P.C. No. 30874/2008 -: 4 :- the returning officer wrongly includes him as a contesting candidate, I am satisfied that the intervention of this Court is called for to correct that mistake which goes to the root of the election itself. As such, I do not find any merit in the objection raised by the 4th respondent in respect of the maintainability of the writ petition, in the facts and circumstances of this case. 7. Now, I shall proceed to consider the merits of the rival contentions. 8. The Election Commission has, in their statement, elaborately explained the procedure to be adopted by Returning Officers in the matter of election to the Panchayats. As rightly pointed out by the Election Commission in their statement, Section 56 of the Kerala Panchayat Raj Act and Rule 11 of the Kerala Panchayat Raj (Conduct of Election) Rules deal with withdrawal of candidature and not withdrawal of nominations. Form 5 appended to the Rules also contemplates for the withdrawal of candidature and not withdrawal of nomination. Once the nominations are scrutinized and even if more than one nomination of a particular candidate is found to be valid after his nominations are accepted, there would be only one nomination and one candidature. Therefore, after the nominations are accepted, there is no question of withdrawing one of the nominations alone. An interpretation contrary to the above would also be absurd. That being so, once nominations are accepted, a candidate can only withdraw his candidature and not one of the valid nominations. 9. Here, the 4th respondent does not disown the notice in form 5 submitted by him, which is produced as one of Ext. P3 series along with the withdrawal of candidature of other candidates other than the petitioner. That notice specifically states that the 4th respondent W.P.C. No. 30874/2008 -: 5 :- gives notice that he has withdrawn his candidature. As rightly pointed out by the Election Commission, going by sub-section (2) of Section 56 of the Kerala Panchayat Raj Act, once a candidate has given notice of withdrawal of his candidature in the manner prescribed, he has no option to cancel the said notice. Therefore, notice of withdrawal of candidature is irrevocable. In so far as the 4th respondent does not disown Ext. P3 notice of withdrawal of candidature submitted by him, he cannot now wriggle out of the same since withdrawal of the candidature has become final and irrevocable. That being so, I am satisfied that respondents 2 and 3 went wrong in including the 4th respondent in the list of contesting candidates. Accordingly, the writ petition is allowed with the following directions: Respondents 2 and 3 shall remove the 4th respondent's name from the list of contesting candidates. On removal of the 4th respondent, the petitioner being the only candidate remaining in the fray, as required, the Returning Officer shall immediately declare the petitioner as the validly elected candidate. Sd/- S. Siri Jagan, Judge. Tds/