Kerala High Court
N.Haridasan vs The State Of Kerala on 22 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 22ND DAY OF MARCH 2021/1ST CHAITHRA, 1943
WP(C).No.7358 OF 2021(T)
PETITIONER:
N.HARIDASAN, S/O.K.ACHUTHAN NAIR,
AGED 52 YEARS, RESIDING AT NALONTHAYIL,
THIRUVANGAD P.O., THALASSERY, PIN-670 103.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SHRI.S.MANU
SHRI.HARIKRISHNAN S.
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE CHIEF ELECTION COMMISSIONER OF INDIA,
NIRVACHAN SASADAN, ASHOKA ROAD,
NEW DELHI-110 001.
3 THE CHIEF ELECTORAL OFFICER,
ELECTION DEPARTMENT,
KERALA LEGISLATIVE COMPLEX,
VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM-695 033.
4 THE RETURNING OFFICER/SUB COLLECTOR,
013, THALASSERY ASSEMBLY CONSTITUENCYCY,
OFFICE OF SUB COLLECTOR, THALASSERY 670 101.
R1 BY ADV. SRI.K.V.SOHAN, STATE ATTORNEY
BY SRI.P.VIJAYAKUMAR, ASGI
R2-R3 BY ADV. SRI.DEEPU LAL MOHAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.03.2021, ALONG WITH WP(C).7359/2021(T),
WP(C).7369/2021, WP(C).7371/2021, WP(C).7372/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.7358/2021 & connected cases
:2 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 22ND DAY OF MARCH 2021/1ST CHAITHRA, 1943
WP(C).No.7359 OF 2021(T)
PETITIONER:
NIVEDIDA SUBRAMANIAN,
W/O.LATE PADIKKAL SUBRAMANIYAN,
NAVANEETHAM, KARAKKAD ROAD, GURUVAYOOR,
THRISSUR DISTRICT,PIN-680 101.
BY ADVS.
SRI.K.RAMAKUMAR (SR.)
SHRI.KRISHNADAS P. NAIR
SRI.T.RAMAN UNNI
SRI.S.M.PRASANTH
SRI.HARIDAS P.NAIR
SRI.M.A.VINOD
SMT.K.L.SREEKALA
SMT.P.VANDANA
RESPONDENTS:
1 THE RETURNING OFFICER (063),
GURUVAYOOR ASSEMBLY CONSTITUENCY, GURUVAYOOR
(RATION OFFICER) THRISSUR DISTRICT.
2 THE CHIEF ELECTION COMMISSIONER,
NIRVCHAN SADAN, ASHOKA ROAD,
NEW DELHI-110 001.
3 THE STATE CHIEF ELECTORAL OFFICER/
STATE ELECTION COMMISSIONER, VIKAS BHVAN,
THIRUVANANTHAPRUAM-695 033.
4 DILEEP C.P., 8B GOKULAM AMRIT RETREAT,
VIVEK NAGAR ROAD, KADAVANTRHA,
KOCHI-682 020.
WP(C) Nos.7358/2021 & connected cases
:3 :
5 ABDUL KHADER, KANNANAVIL HOUSE,
OTTATHARA P.O., KODUR, PIN-676 504.
6 AKBAR, NALAKATH KUTTIKKAT HOUSE,
CHAVAKKAD P.O., THRISSUR- 680 506.
7 KUMARAN, MELEDATH HOUSE, MATTUMAL P.O.,
MADU VIA ORUMANYUR, PIN-680 512.
8 HARIS BABU, MANATHUPARAMBIL HOUSE,
KUNDALIYUR P.O., PIN-680 616, THRISSUR.
9 ANOTNY, THALAKOTTUR HOUSE, NHAMANGHAT P.O.,
CHAVAKKAD, THIRISSUR, PIN-680 506.
10 ASHARAF, 3/284 KOMBATHAYIL HOUSE,
VADAKKEKAD P.O., THRISSUR, PIN-679 562.
R2 BY ADV. SRI.DEEPU LAL MOHAN
SRI P.VIJAYAKUMAR, ASGI
SRI.K.V.SOHAN, STATE ATTORNEY
R3 BY SRI. KODOTH SREEDHARAN, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.03.2021, ALONG WITH WP(C).7358/2021(T),
WP(C).7369/2021, WP(C).7371/2021, WP(C).7372/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.7358/2021 & connected cases
:4 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 22ND DAY OF MARCH 2021/1ST CHAITHRA, 1943
WP(C).No.7369 OF 2021
PETITIONER:
NISHI S., ADVOCATE, SATHIASIASREE,
T.C.13/710, VANCHIYOOR P.O.,
THIRUVANANTHAPURAM-695 035.
BY ADV. SRI.JELSON J.EDAMPADAM
RESPONDENTS:
1 THE ELECTION COMMISSION OF INDIA,
REPRESENTED BY THE CHIEF ELECTORAL OFFICER,
VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033.
2 THE RETURNING OFFICER - 127 -
VARKALA CONSTITUENCY, ASSISTANT SECRETARY,
DIRECTORATE OF SURVEY, VAZHUTHACAUD,
THIRUVANANTHAPURAM-695 014.
BY ADV. SRI.DEEPU LAL MOHAN, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.03.2021, ALONG WITH WP(C).7358/2021(T),
WP(C).7359/2021(T), WP(C).7371/2021, WP(C).7372/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.7358/2021 & connected cases
:5 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 22ND DAY OF MARCH 2021/1ST CHAITHRA, 1943
WP(C).No.7371 OF 2021
PETITIONER:
ROBIN MATHEW, S/O. N.V.MATHEW,
NO.119, NAREKATTU HOUSE, PIRAVOM P.O.,
ERNAKULAM ,PIN-686 664.
BY ADVS.
SRI.TITUS MANI
SRI.P.A.JACOB
SRI.BINNY THOMAS
RESPONDENTS:
1 THE CHIEF ELECTORAL OFFICER,
ELECTION DEPARTMENT, KERALA LEGISLATIVE
COMPLEX, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM-695 033.
2 ASSISTANT RETURNING OFFICER,
85, PIRAVOM LA CONSTITUENCY &
BLOCK DEVELOPMENT OFFICER, PAMPAKUDA,
PIRAVOM, ERNAKULAM-686 667.
R2 BY ADV. SRI.DEEPU LAL MOHAN, SC
SRI P.VIJAYAKUMAR, ASGI
SRI.K.V.SOHAN, STATE ATTORNEY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.03.2021, ALONG WITH WP(C).7358/2021(T),
WP(C).7359/2021(T), WP(C).7369/2021, WP(C).7372/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.7358/2021 & connected cases
:6 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 22ND DAY OF MARCH 2021/1ST CHAITHRA, 1943
WP(C).No.7372 OF 2021
PETITIONER:
R.DHANALAKSHMY, AGED 57 YEARS,
W/O.LATE M.MARIMUTHU, HOUSE NO.1/220,
DHANASREEILLAM, NADUPPARAI JUNCTION,
CHINNAKKANAL P.O., IDUKKI-685 618.
BY ADVS.
SRI.P.B.KRISHNAN
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SRI.MANU VYASAN PETER
RESPONDENTS:
1 ELECTION COMMISSION OF INDIA
REPRESENTED BY ITS SECRETARY,
NIRVACHAN SADAN, ASOKA ROAD,
NEW DELHI-110 001.
2 THE CHIEF ELECTORAL OFFICER (KERALA),
KERALA LEGISLATIVE COMPLEX, VIKAS BHAVAN,
THIRUVANANTHAPURAM-695 033.
3 THE RETURNING OFFICER, 088
DEVIKULAM ASSEMBLY CONSTITUENCY,
OFFICE OF THE SUB COLLECTOR,
DEVIKULAM, IDUKKI-685 613.
BY ADV. SRI.DEEPU LAL MOHAN, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.03.2021, ALONG WITH WP(C).7358/2021(T),
WP(C).7359/2021(T), WP(C).7369/2021, WP(C).7371/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.7358/2021 & connected cases
:7 :
JUDGMENT
~~~~~~~~~
Dated this the 22nd day of March, 2021
[WP(C) Nos.7358, 7359, 7369 & 7371 of 2021]
The writ petitioners are candidates who have
submitted their nominations for contesting in Assembly
Constituencies in the ensuing election to the Kerala
Legislative Assembly. The petitioners are before this Court
aggrieved by the rejection of their nominations.
2. The petitioner in W.P.(C) No.7358/2021 submitted
nomination for contesting in 013-Thalassery Assembly
Constituency. The nomination was submitted at 01.15 p.m. on
19.03.2021, the last date prescribed. Along with nomination,
duly filled up Form-A and Form-B were submitted. However,
Form-A submitted at 01.15 p.m. did not contain signature of
National President of the political party. When the defect was
noted, the petitioner submitted Ext.P4 request seeking one
hour time to clear the mistake. According to the petitioner, the
WP(C) Nos.7358/2021 & connected cases
the Returning Officer did not grant time. On 20.03.2021, the
date of scrutiny of nominations, the petitioner produced
Form-A ( Ext.P5) duly signed by the National President of the
political party, along with Ext.P6 affidavit.
3. After scrutiny, the Returning Officer rejected the
nomination observing as follows:-
"Since Form-A has not been submitted in
required format in due time (3 p.m. of 19.03.2021),
we scrutinised the nomination as that of an
independent candidate but since it is not supported
by 10 proposers, this nomination form is rejected."
On the same day, the Returning Officer returned to the
petitioner a copy of the duly signed Form-A, as per Ext.P8.
4. The petitioner in W.P.(C) No.7359/2021 submitted
nomination for contesting in 063-Guruvayur Assembly
Constituency on 19.03.2021 at 2.42 p.m. Among the
documents submitted, Form-A and Form-B were unfilled.
However, at 2.59 p.m., the petitioner submitted Form-A and
Form-B. Form-A so submitted was duly signed by National
President of the Party. But, Form-B did not contain the
WP(C) Nos.7358/2021 & connected cases
signature of the Authorised State President of the Party. In
this case also, on 20.03.2021, the date of scrutiny, the
petitioner submitted Form-B duly signed by the State
President. However, the Returning Officer rejected the
nomination observing that as per the Hand-book of the
Election Commission, it should have been submitted on
19.03.2021. The petitioner si challenging rejection of his
nomination.
5. W.P.(C) No.7369/2021 is filed by a candidate who
submitted nomination to 127-Varkala Assembly Constituency.
The petitioner filed nomination for election to the general seat
on 19.03.2021. She submitted nomination as a candidate of a
political party with the official election symbol. Her nomination
was rejected on the ground that the Part Number of one
among the proposers in the nomination paper, is not in the
final voters list. According to the petitioner, the Part Number
was properly and clearly written in the old voters list. The
rejection of her nomination paper on super technical grounds,
is illegal and unsustainable.
WP(C) Nos.7358/2021 & connected cases
6. The petitioner in W.P.(C) No.7371/2021 wanted to
contest in 85-Piravom Constituency and submitted his
nomination on 19.03.2021, as candidate of a political party.
When the petitioner submitted his nomination, certain defects
were noted and the petitioner was given time to produce
Form-A and Form-B at the latest by 20.03.2021. According to
the petitioner, before the petitioner could submit the Forms on
20.03.2021, the nomination of the petitioner was rejected on
the ground that for a valid nomination, i.e., for a registered
unrecognised party, 10 proposers are needed.
7. The learned Senior Counsel appearing in W.P.(C)
No.7358/2021 contended that in the matter of scrutiny of
nomination, there is total non-compliance of Section 36(5) of
the Representation of the People Act, 1951. The additional 4th
respondent did not evaluate the defect in Form-A in a
transparent and open manner. The additional 4th respondent
should have given an opportunity to the petitioner to cure the
defect. The order of the Returning Officer interferes with the
free flow of election and hinders the progress of the election,
WP(C) Nos.7358/2021 & connected cases
contended the learned Senior Counsel.
8. The learned counsel for the petitioner pointed out
that the 4th respondent issued Ext.P3 check list of documents.
At Serial No.3 of the check list, the 4th respondent indicated
that no Form-A or Form-B was filed. This is against the facts.
The petitioner had indeed submitted Form-A and Form-B,
though the Form-A submitted first did not contain the
signature of National President. However, in Ext.P7, the
Returning Officer has stated that since Form-A has not been
submitted "in required format" in time, his nomination is being
rejected. Ext.P7 would show that the petitioner had submitted
Form-A on 19.03.2021. The learned Senior Counsel pointed
out that in Ext.P3 checklist, the 4th respondent had stated that
he is giving time to the petitioner to produce Form-A and
Form-B till 3 p.m. on 19.03.2021. When the petitioner had
submitted Form-A, the Returning Officer should not have
stated that he is giving time till 3 p.m. If Form-A actually
submitted by the petitioner suffered any defect, the Returning
Officer ought to have directed the petitioner to cure the
WP(C) Nos.7358/2021 & connected cases
defects. Ext.P3 would evidence the non application of mind
by the Returning Officer.
9. The learned counsel for the petitioner pointed out
that the petitioner has been subjected to discriminatory
treatment. In respect of another candidate, who contested in
085-Piravom Constituency, the Returning Officer granted time
to the said candidate to produce the documents upto
20.03.2021, the date of scrutiny. In respect of the said
candidate also, the defect was non production of Form-A and
Form-B. Though the petitioner requested time to the 4th
respondent, the 4th respondent did not grant time to the
petitioner. Even though the petitioner produced Form-A duly
signed on 20.03.2021, the Returning Officer rejected the
nomination of the petitioner. At the same time, in Piravom
Constituency, Form-A and Form-B produced by a candidate
were entertained on 20.03.2021, which is evident from
Ext.P11, contended the learned counsel.
10. Relying on the judgment of the Apex Court in
Election Commission of India v. Ashok Kumar and Others
WP(C) Nos.7358/2021 & connected cases
[(2000) 8 SCC 216], the learned counsel for the petitioner
urged that the Hon'ble Apex Court has held that the courts
must guard against any attempt at retarding, interrupting,
protracting or stalling of the election proceedings. The
petitioner is only seeking an equal treatment. The petitioner is
seeking only to correct a minor defect which is not material.
Therefore, if this Court directs the respondents to accept the
defectless Form-A submitted by the petitioner, that would not
amount to retarding, interrupting, protracting or stalling of the
election proceedings. The bar under Article 329 will not come
in the way of this Court in exercising jurisdiction under Article
226 of the Constitution of India. If this Court directs the
respondents to accept Form-A submitted by the petitioner,
that will only further democratic electoral process and it will be
in the interest of justice also.
11. The learned counsel for the petitioner further relied
on a Division Bench judgment of the Gujarat High Court in
Marutiben Dhudabhai Gamar v. State Election
Commission and another [2018 KHC 3943] to contend that
WP(C) Nos.7358/2021 & connected cases
the High Courts in exercise of Article 226 can pass orders
directing to accept the nominations of the candidates to meet
the ends of justice. The petitioner had in fact filed the
nomination in time. The delay in submitting a defectless
Form-A need not result in rejection of the nomination,
contended the learned counsel for the petitioner.
12. The learned Senior Counsel appearing in W.P.(C)
No.7359/2021 urged that the mandate of Rule 4 of Conduct of
Election Rules are clear and a defect in Form-A or Form-B
cannot result in rejection of a nomination. The Returning
Officer, instead of taking his decision on statutory rules, has
relied on the Handbook issued by the Election Commissioner,
which are only in-house instructions. Acceptance of
nomination and allocation of symbol are distinct and different.
Form-A and Form-B relates to allocation of symbols. Non
submission of Form-B cannot vitiate a nomination properly
filled and submitted, contended the learned Senior Counsel.
The learned Senior Counsel further submitted that when the
decision making process of the respondents are faulty, this
WP(C) Nos.7358/2021 & connected cases
Court will be amply justified in interfering with the matter and
giving directions to the respondents.
13. The learned Senior Counsel pointed out that in
Prahladan v. Varkala Kahar [2012 (3) KHC 753], this Court in
similar circumstances interfered and directed the respondents
to accept the nomination of a candidate. In the said case, the
nomination paper was rejected on the ground that it was
improperly stamped. This Court found that for the said
reason, nomination cannot be rejected. In the present case
also, the defect noted is not a material defect and the
respondents committed grave error in rejecting the
nominations submitted by the petitioner.
14. The learned counsel for the petitioner in W.P.(C)
No.7372/2021 pointed out that his nomination was rejected on
the ground that Form-26 submitted by the petitioner did not
contain requisite statements and that Form-26 is typewritten.
The learned counsel for the petitioner pointed out that what
was submitted by the petitioner is Form-26 in old format. In
other Constituencies in the State of Kerala, the Returning
WP(C) Nos.7358/2021 & connected cases
Officers have accepted Form-26 submitted in old formats.
One Santhosh Madhavan submitted nomination in
Udumbanchola Constituency. The said Santhosh Madhavan
submitted Form-26 in the old format. The nomination of said
Santhosh Madhavan was accepted. Similarly, one Sangeetha
submitted nomination along with Form-26 in the old format, for
contesting in Idukki Assembly Constituency. The said Form-
26 in old format and her nomination were accepted. However,
in the case of the petitioner alone, his nomination has been
rejected on the ground that Form-26 submitted by the
petitioner is in the old format.
15. The learned counsel further urged that defect in the
format of affidavit used by the petitioner is not a matter of
substantial character that requires the Returning Officer to
reject the nomination. Rejection of nomination on that ground
amount to gross violation of Section 36(4) of the
Representation of the People Act. Form-26 submitted by the
petitioner contained all the requisite facts which are to be
stated. Even if there is any deficiency in the old format, the
WP(C) Nos.7358/2021 & connected cases
said defect was curable. Rejection of nomination on that
ground is highly arbitrary and liable to be interfered with.
16. The learned counsel further urged that respondent
No.3 was not consistent in the decision making process. If the
3rd respondent evaluated the affidavit in Form-26 as it truly
appears and had the 3rd respondent evaluated the affidavit in
a transparent manner he would have given an opportunity to
the petitioner to cure the defect. In the circumstances of the
case, the bar under Article 329 of the Constitution is not
attracted as the petitioner is not seeking orders to delay the
electoral process. The petitioner is only seeking to remedy
the situation arising out of an arbitrary action of the Returning
Officer. Granting relief to the petitioner would only ensure free
and fair election, contended the learned counsel for the
petitioner.
17. In W.P.(C) No.7369/2021, the learned counsel for
the petitioner argued that his nomination has been rejected on
the ground that part number of the proposer was incorrect.
That is not a material defect. Section 33(4) of the
WP(C) Nos.7358/2021 & connected cases
Representation of the People Act casts a duty on the 2nd
respondent to satisfy himself that the names and electoral roll
number of the candidates as entered in the nomination paper
are same as entered in the electoral roll. Law mandates that
there should be a substantial compliance with Section 33(1) of
the Act in completing the form and in delivering the same. In
the circumstances of the case, the respondents are liable to
be compelled to accept the nomination paper of the petitioner
to the general election.
18. The learned counsel for the petitioner in W.P.(C)
No.7371/2021 stated that it was thoroughly improper on the
part of the respondents to reject his nomination, after granting
the petitioner time to produce Form-A and Form-B by
20.03.2021. Cancelling the granted time for curing defects,
the Returning Officer should not have rejected the nomination,
when the petitioner was ready with requisite documents,
contended the learned counsel for the petitioner.
19. The learned Standing Counsel appearing for the
Election Commission of India, relying on the judgment of the
WP(C) Nos.7358/2021 & connected cases
Apex Court in Shyamdeo Pd. Singh v. Nawal Kishore
Yadav [(2000) 8 SCC 46] urged that one of the principles
underlying the plenary bar on judicial proceedings in election
matters created by Article 329(b) is the pre-emptory urgency
of prompt engineering of the whole election process without
intermediate interruptions by way of legal proceedings by way
of challenging the steps and stages in between the
commencement and the conclusion. The learned counsel for
the petitioner pointed out that the Hon'ble Apex Court has
been taking a consistent view that once the election process is
started by publishing election notification, the High Courts in
exercise of the jurisdiction under Article 226 should not
entertain writ petitions which will cause hindrance to the
electoral process.
20. Relying on the judgment of the Apex Court in
Manda Jaganath v. K.S. Rathnam and Others [(2004) 7
SCC 492], the learned Standing Counsel pointed out that only
those actions of the Returning Officer which have the effect of
interfering in the free flow of scheduled elections or hinder the
WP(C) Nos.7358/2021 & connected cases
progress of election are amenable to correction in writ
jurisdiction of courts.
21. The learned Standing Counsel pointed out that the
Hon'ble Apex Court has held in the judgment in Election
Commission of India v. Ashok Kumar and Others [(2000) 8
SCC 216] that even if the law has been breached and such
breach satisfies the test of material effect on the result of the
election of the returned candidate, yet postpone the
adjudication of such dispute till the election proceedings are
over so as to achieve, in large public interest, the goal of
constituting a democratic body without interruption or delay on
account of any controversy confined to an individual or group
of individuals or single constituency having arisen and
demanding judicial determination. The learned Standing
Counsel relied on Annexure-R2(a) judgment of this Court in
W.P.(C) No.31990/2015 wherein it was held that whether the
defect noticed is of substantial character or not, is a matter of
evidence and this Court cannot go into such matters in
exercise of the powers under Article 226 of the Constitution of
WP(C) Nos.7358/2021 & connected cases
India.
22. I have heard the learned counsel for the petitioners
and counsel appearing on behalf of the respondents.
23. The learned counsel for the petitioner in W.P.(C)
No.7358/2021 stressed on the fact that while the petitioner
was not granted time to cure the defect and still be cured the
defect on the date of scrutiny, his nomination has been
rejected. At the same time, the Returning Officers entertained
the documents produced by certain other candidates, on the
date of scrutiny. This is grossly discriminatory, arbitrary and
unjust.
24. The learned counsel for the petitioner in W.P.(C)
No.7372/2021 pointed out that when the petitioner's
nomination was rejected on the ground that the petitioner
produced Form-26 in the old format, the nomination submitted
by many other candidates in the old format of Form-26 was
entertained and they were permitted to contest in the
elections. If this is true, indeed it will be grossly
discriminatory. Such divergent considerations and differential
WP(C) Nos.7358/2021 & connected cases
treatment would indeed tell upon the impartiality of the
electoral officers and Returning Officers.
25. However, to what extent interference of this court is
possible in the electoral process, in exercise of the jurisdiction
under Article 226 of the Constitution, is the question. The
Hon'ble Apex Court in the judgment in Manda Jaganath v.
K.S. Rathnam and Others [(2004) 7 SCC 492] has clarified
the position that errors that could be corrected by judicial
interference while the election is in progress are errors of the
nature which interfere with the free flow of the scheduled
election or hinder the progress of the election. The scheme of
the Constitution and the Representation of the People Act do
not contemplate two attacks with matters in connection with
election proceedings, one by invoking the powers of the High
Court under Article 226 and the other by means of the election
petition and that the scheme of the constitutional and statutory
provisions is that any matter which has the effect of vitiating
the election should be brought up only at the appropriate
stage in an appropriate manner before the Special Tribunal
WP(C) Nos.7358/2021 & connected cases
and should not be brought up at the intermediate stage before
any court.
26. In the judgment in Election Commission of India
v. Ashok Kumar and Others [(2000) 8 SCC 216], the Hon'ble
Apex Court held that the court must be weary and act with
caution while entertaining any election dispute though not hit
by Article 329. The court must guard against any attempt at
retarding, interrupting, protracting or stalling of the election
proceedings.
27. A learned Single Judge of this Court considered the
judgments of the Apex court from N.P. Ponnuswami v.
Returning Officer [AIR 1952 SC 64] onwards in the judgment
in Vinod and another v. Returning Officer [2021 (1) KHC
105] held as follows:-
"In a country with a democratic constitution in
which Legislatures have to play a very important role,
it will lead to serious consequences, if the elections
are unduly protracted or obstructed on account of
judicial interference in the intermediate stage of the
election. In other words, the view expressed in the
said case is that howsoever erroneous or howsoever
malicious the decision of the Returning Officer in
rejecting the nomination be, judicial intervention is not
contemplated against the same at the intermediate
stage of the election."
WP(C) Nos.7358/2021 & connected cases
Therefore, howsoever erroneous be the rejection of a
nomination of a candidate by the Returning Officer, judicial
intervention is not contemplated against the same at the
intermediate stage of the election. The said judgment was
upheld by a Division Bench of this Court in WA No.166/2021.
28. A Division Bench of this Court again considered the
issue in Abdulla v. Kerala State Election Commission
[2020 (6) KHC 577 (DB)]. This Court also held that the word
election is used to embrace the whole procedure of election
and final result thereof. This Court held that law does not
contemplate two attacks of the matters connected with the
election i.e., one under Article 226 treating the process of
election and the other when it is completed by election petition
under the Act, 1951. Rejection or acceptance of nomination
papers cannot be challenged under Article 226 of the
Constitution. The Division Bench held that interfering with the
rejection of nomination is a matter interrupting the progress of
election which is deprecated by Constitution Bench judgment
of the Apex Court.
WP(C) Nos.7358/2021 & connected cases
29. In view of the judgment of the Apex Court referred
to above and in the light of the judgment of a Division Bench
of this Court in Abdulla v. Kerala State Election
Commission (supra) , this Court is not inclined to interfere
with the election process at the instance of the petitioners, at
this stage.
30. The Election Commission of India exercises plenary
powers under Article 324 of the Constitution and any error or
deficiencies in the electoral process can be corrected by the
Election Commission of India itself. As regards the allegations
made in W.P.(C) Nos.7358, 7359 and 7372 of 2021, it will be
open to the Election Commission of India to look into these
aspects and take remedial measures, as are found necessary.
31. Having held so, this Court notes with the concern
that Returning Officers in different constituencies are resorting
different parameters in the matter of acceptance of
nominations, scrutiny of nominations and acceptance of
various forms. When some candidates get the benefits of
liberal approach of the Returning Officers, some others are
WP(C) Nos.7358/2021 & connected cases
put to disadvantageous position affecting their statutory right
under the Representation of the People Act to contest in the
elections. This Court is of the opinion that taking note of the
factual situations disclosed in these writ petitions, the Election
Commission of India shall take necessary steps so that such
differential treatment is excluded and the purity of the election
process is preserved.
The writ petitions are dismissed with the above
observations. As this Court is not considering the issues
raised by the petitioners on their merits, all contentions raised
by the petitioners are left open.
Sd/-
N. NAGARESH, JUDGE
aks/22.03.2021
WP(C) Nos.7358/2021 & connected cases
APPENDIX OF WP(C) 7358/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE FORMAT OF NOMINATION
PAPER PRESCRIBED IN fORM 2-B OF THE
CONDUCT OF ELECTION RULES, 1961.
EXHIBIT P2 TRUE COPY OF THE PART-VI DATED
19/3/2021.
EXHIBIT P3 TRUE COPY OF CHECK LIST OF DOCUMENTS
ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P4 TRUE COPY OF REPRESENTATION DATED
19/3/2021 SUBMITTED BY THE PETITIONER
BEFORE THE 3RD RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE REVISED FORM-A
SUBMITTED ON 20/3/2021.
EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT ACCOMPANYING
EXT.P5.
EXHIBIT P7 TRUE COPY OF PART-IV AND PART-V OF THE
NOMINATION PAPER CONTAINING THE DECISION
TO REJECT THE NOMINATION.
EXHIBIT P8 TRUE COPY OF REASONED ORDER DATED
20/3/2021 OF THE 3RD RESPONDENT
REJECTING NOMINATION.
EXHIBIT P9 TRUE COPY OF RELEVANT PORTION OF THE
HANDBOOK ISSUED BY THE ELECTION
COMMISSION OF INDIA
EXHIBIT P10 TRUE COPY OF THE ORDER DATED 20.03.2021
OF THE 4TH RESPONDENT (SOUGHT TO BE
IMPLEADED), REJECTING THE NOMINATION OF
PETITIONER.
WP(C) Nos.7358/2021 & connected cases
EXHIBIT P11 TRUE COPY OF RELEVANT PORTION OF THE
CHECKLIST OF DOCUMENTS OF ASSISTANT
RETURNING OFFICER, 085, PIRAVOM
LEGISLATIVE ASSEMBLY CONSTITUENCY.
ANNEXIRE R2(a) THE PHOTOCOPY OF THE JUDGMENT DATED
20.10.20215 IN WP(C) NO.31990/2015 OF
THIS HON'BLE COURT.
WP(C) Nos.7358/2021 & connected cases
APPENDIX OF WP(C) 7359/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER OF THE
RETURNING OFFICER DATED 20/3/2021.
EXHIBIT P2 TRUE COPY OF THE FORM NO.A DATED
14/3/2021.
EXHIBIT P3 TRUE COPY OF THE FORM NO.B DATED
17/3/2021.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN OP
NO.25704/2000 DATED 5/9/2020.
WP(C) Nos.7358/2021 & connected cases
APPENDIX OF WP(C) 7369/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER NO.DSLR-415-
2021-G2 DATED 20.3.2021 OF THE
ASSISTANT RETURNING OFFICER.
EXHIBIT P2 TRUE COPY OF THE ELECTORAL ID CARD OF
SI.THULASIDHARAN CHETTIYAR.
EXHIBIT P3 TRUE COPY OF THE ELECTORAL ID CARD OF
SMT.SHYLAJA.
EXHIBIT P4 TRUE COPY OF THE ELECTORAL ID CARD OF
SMT. RAJINA.
WP(C) Nos.7358/2021 & connected cases
APPENDIX OF WP(C) 7371/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NOMINATION PAPER
EXHIBIT P2 TRUE COPY OF THE CHECK LIST OF THE
DOCUMENTS OF CONNECTION WITH FILING OF
NOMINATION ISSUED BY THE 2ND RESPONDENT
EXHIBIT P3 TRUE COPY OF THE FORM A SUBMITTED BY THE
PETITIONER
EXHIBIT P4 TRUE COPY OF THE FORM B SUBMITTED BY THE
PETITIONER
EXHIBIT P5 TRUE COPY OF THE LIST OF 10 PROPOSERS/
ELECTORS
EXHIBIT P6 TRUE COPY OF PART V OF "FORM 2B-DECISION
OF RETURNING OFFICER ACCEPTING/REJECTING
THE NOMINATION PAPA' REJECTING THE
NOMINATION PAPER
WP(C) Nos.7358/2021 & connected cases
APPENDIX OF WP(C) 7372/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF NOMINATION PAPER OF THE
PETITIONER IN FORM 2B, DATED 18.03.2021.
EXHIBIT P2 A TRUE COPY OF THE AFFIDAVIT DATED
18.03.2021 IN FORM 26 FILED ALONG WITH THE
NOMINATION.
EXHIBIT P3 A TRUE COPY OF THE ADDITIONAL AFFIDAVIT
DATED 18.03.2021.
EXHIBIT P4 A TRUE COPY OF THE CHALAN DATED
19.03.2021.
EXHIBIT P5 A TRUE COPY OF THE REJECTION AS NOTIFIED
BY RESPONDENT NO.1 IN ITS WEBSITE.
EXHIBIT P6 A TRUE COPY OF THE CANDIDATE AFFIDAVIT
MANAGEMENT SHOWING THE LIST OF CANDIDATES.
EXHIBIT P7 A TRUE COPY OF NEW FORM 26 AFFIDAVIT.
EXHIBIT P8 A TRUE COPY OF THE PARTICULARS IN THE
WEBSITE OF RESPONDENT NO.1 SHOWING THE
ACCEPTANCE OF THE NOMINATION OF
SRI.SANTHOSH MADHAVAN, BDJS CANDIDATE IN
UDUMBANCHOLA CONSTITUENCY ALONG WITH THE
AFFIDAVIT IN FORM 26.
EXHIBIT P9 A TRUE COPY OF THE PARTICULARS IN THE
WEBSITE OF RESPONDENT NO.1 SHOWING THE
ACCEPTANCE OF THE NOMINATION OF
SMT.SANGEETHA, BDJS CANDIDATE OF IDUKKI
CONSTITUENCY ALONG WITH THE AFFIDAVIT IN
FORM 26.
