Kerala High Court
Jabir V vs The Returning Officer/The ... on 13 June, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 13TH DAY OF JUNE 2023 / 23TH JYAISHTA, 1945
WP(C) NO. 18232 OF 2023
PETITIONERS:
1 JABIR V
AGED 20 YEARS
S/O MUHAMMED, PEDIKAKANDI HOUSE, KAVUNGAPPARA,
PALAKKAD -, PIN - 676306
2 MUHAMMAD SHAHUL HUNAIF
AGED 22 YEARS
, S/O HAMSA ALIPARAMBA PAKKATH HOUSE, ALIPPARAMBA,
ALIPPARAMBA-, PIN - 679357
3 MUHAMMED ANAS P.K
AGED 24 YEARS
S/O KAREEM POOZHIKUNNUMMAL HOUSE, POOKODE,
THAZHAMPYIL, THAMARASSERY-, PIN - 673573
4 MUHAMMAD RASAL
AGED 19 YEARS, S/O SAJID K , KANNIYAN
KANDI,CHERAPURAM-., PIN - 673507
5 ADIL SALAH.E P
AGED 20 YEARS
S/O PAREETH,ELAMKUZHI HOUSE, CHERUVAYOOR
,POVAZHAKKAD-., PIN - 673645
6 SAJEENA ADIYATTIL
AGED 19 YEARS
D/O ABDU SAMAD, ADIYATTIL HOUSE, KALPAKANCHERY
PO,PARAVANNUR-, PIN - 676551
7 NAJEEBA A P,
AGED 20 YEARS
D/O P A M HANEEF ,ATHAKKINTE PURAKKAL,ALUNGAL
BEACH,CHETTIPADI-, PIN - 676319
8 AMIRA SHERIN P C
AGED 19 YEARS, D/O C K P REHIM, PULLOONI CHALIL,
VATAYAM, KAKKATTIL ,CALICUT-., PIN - 673507
9 RASHIF MON K
AGED 20 YEARS, S/O RAFEEQ K,KONGATH HOUSE,
THIRUVAZHAMKUNNU. P.O KOTTAPADAM, MANNARKKAD,
PALAKKAD-., PIN - 678601
W.P.(C)No.18232/2023 2
10 IJAS AHAMMED K.E
AGED 22 YEARS.,S/O IBRAHIM K.,KAROKKIL
HOUSE,KARIMBA. P.O,PALLIPADI, PALAKKAD-, PIN -
678597
11 ABU SWALIH. M
AGED 20 YEARS, S/O MUHAMMED, MATTATH
HOUSE,TIRURANGADI-., PIN - 676306
12 MUHAMMED DANISH MK
AGED 19 YEARS
S/O HASSAN M K MALAYIL KANNANCHERI
HOUSE,VALLIKKUNNU,ATHANIKKAL-, PIN - 673314
13 AJEEB RAFAN
AGED 21 YEARS
S/O MUJEEB,KANDAMPULAKKAL HOUSE
PARAPPOTHADAM,CHERIYAMUNDAM-., PIN - 676106
14 AKHILA JABIN C T
AGED 20 YEARS, D/O SAREENA. CK,CHETTIYAMTHODI
HOUSE,KADANNAMANNA PO,MANKADA-., PIN - 679324
15 MOHAMMED SALEEQ KP
AGED 22 YEARS
S/O PAREETH, KARAPPOOLA HOUSE, PATTERKULAM,
MANJERI, NARUKARA PO-., PIN - 676122
16 MUHAMMED ALI SHIHAB P S
AGED 21 YEARS, S/O SHARAFUDHEEN, POOVALLOOR HOUSE
ARAMKALLU, MULLAKARA, PATTIKKAD-, PIN - 680652
17 FIDA NARGHEES.K
AGED 21 YEARS
D/O ANWARUDHEEN.K,KANHIRALA HOUSE ,PERAKAMANN,
POOTHAYI-., PIN - 676541
18 SHIBLA SHERIN.P
AGED 20 YEARS
D/O SIDDIQUE,POKLATH
HOUSE,PATHAMPAD,NIRAMARUTHUR-, PIN - 676109
19 NAJIH NOOR
AGED 24 YEARS,S/O MOHAMMED .N,CHAKKUM THODUVIL
HOUSE,MUTHUVALLUR, MUTHUVALLUR-, PIN - 673638
20 DHILSHAD KP
AGED 24 YEARS,S/O POKKER, KARINGAPPARA
HOUSE,ATHAVANAD,MALAPPURAM-, PIN - 676301
W.P.(C)No.18232/2023 3
21 AMEEN ABDULLAH P
AGED 19 YEARS
PADUPPUNGHAL HOUSE,MOOTHEDAM-, PIN - 679331
BY ADVS.
P.E.SAJAL
AJAS K.S.
RESPONDENTS:
1 THE RETURNING OFFICER/THE REGISTRAR
CALICUT UNIVERSITY, MALAPPURAM -, PIN - 673635
2 DEAN OF STUDENT'S WELFARE, UNIVERSITY OF CALICUT,
MALAPPURAM-, PIN - 673635
3 UNIVERSITY OF CALICUT REPRESENTED BY THE
REGISTRAR,UNIVERSITY OF CALICUT, MALAPPURAM-, PIN
- 673635
4 THE PRINCIPAL
M.A.O COLLEGE OF ARTS AND SCIENCE , ELAYUR,
IRUVETY P.O ,MALAPPURAM-, PIN - 679639
5 THE PRINCIPAL, ANVARUL ISLAM ARABIC
COLLEGE,THIRURKKAD,MALAPPURAM-, PIN - 679321
6 THE PRINCIPAL, SSM COLLEGE OF TEACHER EDUCATION,
NELLIKKAPARAMBA, MUKKAM, KOZHIKKODE -, PIN -
673602
7 THE PRINCIPAL, IDEAL COLLEGE OF ARTS AND SCIENCE,
KUTTIADI, KOZHIKKODE-, PIN - 673528
8 THE PRINCIPAL, BLOSSOM ARTS AND SCIENCE COLLEGE,
KONDOTTY, MALAPPURAM -, PIN - 673638
9 THE PRINCIPAL, BAFAKHY YATHEEMKHANA BED COLLEGE,
KALPAKANCHERY, MALAPPURAM-, PIN - 676551
10 THE PRINCIPAL
SHAREE'ATH COLLEGE FOR WOMEN, CHAPPAPARA, THENHI
PALAM, MALAPPURAM -, PIN - 673636
11 THE PRINCIPAL, MALABAR ARTS AND SCIENCE COLLEGE
FOR WOMEN, CHEKKIAD, CALICUT-, PIN - 673509
W.P.(C)No.18232/2023 4
12 THE PRINCIPAL, NAJATH ARTS & SCIENCE COLLEGE,
NELLIPUZHA , MANNARKKAD, PALAKKAD-, PIN - 678582
13 THE PRINCIPAL,
ISHA-ATHUL ISLAM ARABIC COLLEGE, PARAPPANANGHADI,
MALAPPURAM -, PIN - 676303
14 THE PRINCIPAL, AL HIDAYA ARABIC COLLEGE,
THURAKKAL, KONDOTTY MALAPPURAM -, PIN - 673638
15 THE PRINCIPAL, LUMINOUS ARTS AND SCIENCE COLLEGE,
VETTICHIRA, MALAPPURAM -, PIN - 676552
16 THE PRINCIPAL, JAMIA NADIWIYA WOMENS ARABIC
COLLEGE, EDAVANNA, MALAPPURAM -, PIN - 676123
17 THE PRINCIPAL,MCT TRAINING COLLEGE, MELMURY,
MALAPPURAM -, PIN - 676517
18 THE PRINCIPAL, MCT COLLEGE OF LEGAL STUDIES,
MELMURY MALAPPURAM -, PIN - 676517
19 THE PRINCIPAL, JAMIA NADIWIYA ARTS AND SCIENCE
COLLEGE, EDAVANNA, MALAPPURAM -, PIN - 676541
20 THE PRINCIPAL,SAYYID MUHAMMADALI SHIHAB THANGHAL
MEMORIAL ARTS AND SCIENCE WOMENS
COLLEGE,KATTILANGHADI- MALAPPURAM -, PIN - 676301
21 THE PRINCIPAL, JAMIA NADIWIYA TRAINING COLLEGE,
EDAVANNA, MALAPPURAM-, PIN - 676541
22 THE PRINCIPAL,MARKAZ TRAINING COLLEGE, ATHAVANAD,
MALAPPURAM-, PIN - 679571
23 THE PRINCIPAL,MARTHOMA COLLEGE OF ARTS AND SCIENCE
CHUNGATHARA, MALAPPURAM-, PIN - 679334
OTHER PRESENT:
SRI. P C SASIDHARAN (SC)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.06.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)No.18232/2023 5
JUDGMENT
The petitioners have approached this Court being aggrieved by the
fact that their names are not included in Ext.P7 electoral roll/list of
voters regarding elections to be held to the Senate of the 3 rd respondent
University. According to the petitioners, they are duly elected University
Union Councilors, and therefore, they are entitled to be included in
Ext.P7.
2. Sri.P.E Sajal, the learned counsel appearing on behalf of the
petitioners, would contend that in terms of Section 17 of the Calicut
University Act, ten (10) members are to be elected to the Senate by
elected members of the General Council of the University Union, which
is, in turn, constituted by University Union Councilors from various
Colleges affiliated to the 3rd respondent University. The petitioners
contend that as per Statute 15 of Chapter I of the Calicut University
(Conduct of Elections to Various Authorities or Bodies) First Statutes,
1975 (hereinafter referred to as the First Statutes, 1975), the Returning
Officer has got the power to make any addition, correction, alteration or
deletion in an electoral roll provided facts necessitating such corrections
are brought to his notice within 15 days after the publication of the
electoral roll. It is submitted that the petitioners, therefore, submitted
Ext.P8 joint representation/complaint regarding non-inclusion in
Ext.P7 electoral roll, which was rejected by Ext.P9 for reasons stated
against the names of each of the petitioners. It is submitted that Ext.P9
was issued without hearing the petitioners and violates the principles of
natural justice. Reference is made to the judgment of the Supreme
Court in University of Kerala v. Council, Principal's, Colleges,
Kerala and others; (2006) 8 SCC 304 and in particular to the
directions in paragraphs 6.8., 6.8.3, 6.8.4, 6.8.5 and 6.8.6 thereof. The
decision of this Court in Subair A. v. Chief Election
Commissioner of Kerala; 2019(3) KHC 548 is referred to
establish that removing a name from the electoral roll has severe
consequences and must therefore be preceded by notice. It is submitted
that the petitioners had approached this Court earlier regarding the
inclusion of their names in the voter's list for the University Union
election, and those proceedings were closed by Ext.P14 judgment
holding that since the petitioners had been permitted to cast their votes,
nothing further survives for consideration in those writ petitions. It is
submitted that the total number of University Union Councilors is 494,
but only the names of 469 University Union Councilors are included in
Ext.P7. It is submitted that the petitioners' names had been removed
based on a complaint filed by a Students Organization, and reference is
made in this regard to Ext.P15. It is submitted that a complaint can be
filed only by a student or by an injured or affected party and by persons
who are directly aggrieved, going by the judgment of the Supreme Court
in University of Kerala (supra). It is submitted that in terms of
Statute 27 of the First Statutes, 1975, the electoral roll of the members
of the General Council of the University Union shall contain the name
and college address of all the members of the General Council of the
University Union constituted by the University. It is submitted that the
provisions of the First Statutes, 1975 also contain provisions regarding
the maintenance of electoral rolls etc., and the same had been violated
in the case of the petitioners.
3. Sri.P.C Sasidharan, the learned Standing Counsel appearing
for respondents 1 to 3 would raise a preliminary objection regarding the
maintainability of the writ petition. It is submitted with reference to the
judgment of the Supreme Court in Gujarat University v. N.U.
Rajguru and others; 1987 (Supp) SCC 512 that where the Statute
provides for a machinery or forum for determination of a dispute
arising out of an election, the aggrieved person should pursue his
remedy before the forum provided by the Statute. It is submitted that
the University had issued U.O. No.5258/2023/Admn dated 21.3.2023,
reconstituting the General Council of the University Union with a list of
469 councilors. It is submitted that the petitioners are not included in
the said list, and there is no direction of any nature to include the
petitioners in the General Council. It is submitted that only those
included in the General Council are entitled to vote for the election of
ten (10) members to the Senate of the University. It is submitted that
the Electoral Officer had considered the complaints raised and had
issued Ext.P9 proceedings rejecting the claim. It is pointed out that
Ext.P9 also indicates that the signature of the students who are stated to
have submitted the representation varies in many cases, and the
genuineness of the complaint itself is doubtful. It is submitted that the
question of violation of natural justice does not arise as the right to vote
at an election is only a statutory right and not a natural or fundamental
right. It is submitted that no relief is sought in the writ petition for the
inclusion of the names of the petitioners within the General Council of
the University Union. It is submitted that the earlier orders permitting
the petitioners to cast their votes for the University Union Council have
no bearing on the facts of the present case. It is submitted that the
petitioners were not included in the electoral roll of the General Council
of the University Union since the college authorities managing the
colleges from where the petitioners are stated to have been elected did
not conduct any proper election and they were simply forwarding
specific names showing that certain persons had been elected.
Paragraphs 27 to 38 of the counter affidavit are referred to point out
that the elections conducted in the colleges in question were a farce and,
therefore, the petitioners have no right to be included in Ext.P7 electoral
roll.
4. Having heard the learned counsel for the petitioners and the
learned counsel appearing for respondents 1 to 3, I am certain that the
petitioners are not entitled to any relief in the present writ petition.
The decision of the Supreme Court in University of Kerala (supra),
deals explicitly with elections to student unions and the directions
contained in paragraph 6.8., obviously apply only to College Union
elections and not to elections to the Senate of the University as the
elections to the Senate of a University are governed by separate
statutory provisions (here the First Statutes, 1975). In Subair A
(supra) this Court had taken the view that deletion of a name of a
person from the electoral roll on the ground that the voter has shifted
his house elsewhere is a serious matter, and the Electoral Registration
Officer is bound to give notice to the voter before the name is removed.
This decision cannot come to the aid of the petitioners as the facts, in
that case, are entirely different from the case on hand. In the case on
hand, the petitioners' names did not find a place in Ext P.7 allegedly on
account of the fact that no proper elections were held to the College
Union in the respective Colleges from where the petitioners claim to be
elected. According to the University, and as set out in paragraphs 27 to
38 of the counter affidavit filed by respondents 1 to 3, there are specific
allegations that the elections in the colleges in question have not been
held correctly. Therefore, the issues raised in this writ petition cannot
be adjudicated in a writ petition under Art. 226 of the Constitution of
India and the principles laid down in Gujarat University (supra)
will clearly apply. In paragraph 6 of the Gujarat University
(supra), it was held:-
"6. It is well settled that where a statute provides for election to an
office, or an authority or institution and if it further provides a
machinery or forum for determination of dispute arising out of
election, the aggrieved person should pursue his remedy before the
forum provided by the statute. While considering an election dispute it
must be kept in mind that the right to vote, contest or dispute election
is neither a fundamental nor a common law right instead it is a
statutory right regulated by the statutory provisions. It is not
permissible to invoke the,jurisdiction of the High Court under Art.226
of the Constitution bypassing the machinery designated by the Act for
determination of the election dispute. Ordinarily the remedy provided
by the statute must be followed before the authority designated
therein. But there may be cases where exceptional or extraordinary
circumstances may exist to justify bypassing the alternative remedies.
In the instant case, there existed no circumstance justifying departure
from the normal rule as even the challenge to the validity of statute 10
was not pressed by the respondents before the High Court."
I am of the view that the petitioners can challenge the question of their
removal from the electoral roll only through a duly constituted election
petition filed in terms of the First Statutes, 1975. The contention of the
learned counsel for the petitioners that the names of the petitioners
were removed based on a complaint filed by a Students Organization is
attractive at first blush. However, for reasons already noted, this also is
a matter to be investigated in a duly constituted election petition and
not through a writ petition under Art. 226 of the Constitution of India.
For all these reasons, the writ petition fails, and it is accordingly
dismissed. I make it clear that I have not expressed any opinion on the
merits of the claim raised by the petitioners, and all contentions shall be
considered in a duly constituted election petition (if such petition is
filed) untrammelled by any observation in this judgment.
Sd/-
GOPINATH P.
JUDGE
acd
APPENDIX OF WP(C) 18232/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE COLLEGE UNION ELECTION
NOTIFICATION DATED 19/10/2022
Exhibit P2 TRUE COPY OF THE ELECTION RESULT ALONG
WITH UUC PROFORMA OF THE PETITIONERS
Exhibit P3 TRUE COPY OF THE ELIGIBLE LIST OF THE
COLLEGES DATED 30/11/2022
Exhibit P4 TRUE COPY OF THE COMMUNICATION DATED
22.02.2023
Exhibit P5 TRUE COPY OF THE GENERAL NOTIFICATION
FOR CONDUCTING ELECTION TO THE
RECONSTITUTION OF THE SENATE OF THE 2ND
RESPONDENT UNIVERSITY IN 10
CONSTITUENCIES DATED 27/02/2023
Exhibit P6 TRUE COPY OF THE ORDER OF THE 2ND
RESPONDENT
Exhibit P7 TRUE COPY OF THE ELECTORAL ROLL DATED
15-04-2023
Exhibit P8 TRUE COPY OF THE JOINT
REPRESENTATION/COMPLAINT BEFORE THE 1ST
RESPONDENT
Exhibit P9 TRUE COPY OF THE PROCEEDINGS DATED
15.05.2023 ISSUED BY THE 1ST RESPONDENT
Exhibit P10 TRUE COPY OF THE NOTIFICATION WITH
APPENDIX (SCHEDULE FOR CONDUCTING
ELECTION)
Exhibit P11 TRUE COPY OF THE INTERIM ORDERS IN WPC
6760/2023, 6821/2023, 6764/2023,
6592/2023 DATED 03.03.2023
Exhibit P12 TRUE COPY OF THE ORDER IN INTERLOCUTORY
APPLICATION IN THE WPC 6592/2023 AND
CONNECTED CASES (IN WP(C) 6760/2023,
6821/2023, 6764/2023)
Exhibit P13 TRUE COPY OF THE BALLOT PAPER ACCOUNT
DATED 15.03.2023
Exhibit P14 THE CONTENTIONS OF BOTH SIDES ARE LEFT
OPEN. TRUE COPY OF THE JUDGEMENT IN THE
WPC 6592/2023 AND CONNECTED CASES (IN
WP(C) 6760/2023, 6821/2023,6764/2023)
DATED 22.03.2023
Exhibit P15 TRUE COPY OF THE COMPLAINT DATED
07/12/2022
