Dismissed

Theyyottuchira Nishath v. the Returning Officer and Others

Kerala HC21 Oct 2010WA/1818/2010

Case brief

AI extract

What is this about?

The High Court dismissed a writ appeal challenging the rejection of the petitioner's nomination as a Panchayat member. The Court held that interference during election proceedings is barred by the Constitution and disputes must be resolved via election petitions under the Kerala Panchayat Raj Act.

What did the court decide?

The writ appeal was dismissed at the admission stage without entertaining the challenge to the nomination rejection.

Theyyottuchira Nishath Vs the Returning Officer and Others — Election Law | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932

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WA.No. 1818 of 2010(T) ---------------------AGAINST THE JUDGEMENT IN WPC.31051/2010 Dated 08/10/2010

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APPELLANT/PETITIONER:

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--------------------------THEYYOTTUCHIRA NISHATH, W/O.SAIDALAVI, AGED 29 YEARS, THEYYOTTUCHIRA HOUSE, P.O.ARAKKUPARAMBA, MALAPPURAM DISTRICT.

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BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.U.K.DEVIDAS

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RESPONDENTS/RESPONDENTS:

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THE RETURNING OFFICER, G 47, THAZHEKODE GRAMA PANCHAYATH AND BLOCK DEVELOPMENT OFFICER, PERINTHALMANNA, PIN - 679 322.

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ALAYAN PATHUMMA, W/O.SAIDALAVI, P.O.ARAKKUPARAMBA, MALAPPURAM DISTRICT.

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THE STATE ELECTION COMMISSION, THIRUVANANTHAPURAM.

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THAZHEKODE GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, THAZHEKODE P.O., MALAPPURAM DISTRICT.

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R3 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J.Chelameswar, C.J. & P.R. Ramachandra Menon, J.

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W.A.No. 1818 OF 2010

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- - - - Dated this the 21^st day of October, 2010

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JUDGMENT

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J.Chelameswar, C.J.

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Aggrieved by judgment dated 08.10.2010 by which W.P.(C) No.31051 of 2010 was disposed of along with some connected and similar writ petitions, the petitioner in the abovementioned writ petition preferred the present appeal.

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The appellant alleges that she was working as a

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helper in a pre-primary section attached to the G.M.L.P. School, Puthoor. According to the appellant, such a pre-primary section is run by the Parent-Teachers' Association of the School without any assistance from the Government.

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By the proceedings of the Government of Kerala

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dated 23.06.10 the Government sanctioned a grant/aid to the teachers and helpers of pre-primary section managed by the Parent-Teachers' Association in Government Schools at the rate of 300/- and 200/- respectively.

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Section 30 of the Panchayat Raj Act came to be

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WA No. 1818 of 2010

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-:2:-

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amended by Ordinance No.25 of 2010. Section 30 ***** of the Kerala Panchayat Raj Act originally prescribed a disqualification for the officers and employees of the Government, Local Authorities etc., to contest the election of any local body or authority. By the amendment, it is provided that part-time employees and those who receive honorarium from the State are also deemed to be the employees of the State for the purpose of the abovementioned Section 30.

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30. Disqualification of officers and employees of Government,

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local authorities, etc. - (1)No officer or employee in the service of the State or Central Government or of a local authority or a corporation controlled by the State or Central Government or of a local authority or any company in which the State or Central Government or a local authority not less than fifty one percent share or of a Statutory Board or of any University in the State shall be qualified for election or for holding office as a member of a Panchayat at any level.

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Explanation .-For the purpose of this section, company means a Government company as defined in Section 617 of the Companies Act, 1956 (Central Act 1 of 1956) and includes a co-operative society registered or deemed to be registered under the Kerala Co-operative Societies Act, 1969(21 of 1969).

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(2) Any officer or employee referred to in sub-section(1) who has been dismissed for corruption or disloyalty shall be disqualified for a period of five years from the date of such dismissal for election or for holding office as a member of a Panchayat at any level.

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WA No. 1818 of 2010

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The appellant herein sought to contest the election for the membership of Ongode Panchayat from Ward No.XI. She filed nomination for the said purpose, but nomination was rejected by an order dated 07.10.2010 which is marked as Ext.P9 in the writ petition. The relevant portion reads as follows:

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“It is hereby informed that your nomination to the Ongad constituency, G47 Thazhekkode Grama Panchayat, Perintalmanna Block, Malappuram District has been rejected at the hearing held at 11 a.m. on 07.10.2010 for the following reasons:

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You are entitled to the monthly honorarium which is granted to the pre-primary school teachers & ayas who are working in the Pre-primary Schools, controlled and managed by the P.T.A of Government Schools as per Government Order 99/10 in 23.06.2010.

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It is stated in the Certificate issued by the head teacher, G.L.P. School, Puthoor, right to information Act, that you are in the list of pre-primary school teachers who are entitled to the Government Honorarium.”

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Challenging the legality of Ext.P9, the writ

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petition was filed with the prayer as follows:

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“i. a writ of certiorari or any other appropriate writ order or direction calling for the records leading to Exhibits P9 and quash the same and all consequential acts on the basis of

WA No. 1818 of 2010

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Ext.P9.

ii. a writ of mandamus or any other appropriate writ order or directions to the first respondent and third respondent that accept the nomination paper of the petitioner and allow her to contest in the election posted on 25.10.2010 as ward member of Ward No.11 Ongode ward of the fourth respondent Grama Panchayat.

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iii. award the cost of this writ petition to the petitioner from the respondents.”

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One of the assertions made in the writ petition is that the petitioner had submitted her resignation to the ParentTeachers' Association, referred to earlier, on 29.09.2010 itself and therefore on the date of the nomination she is not the employee of the State of Kerala either in fact or by legal fiction. Another assertion in the writ petition is that though by the proceedings dated 23.06.2010 (produced and referred to as Ext.P2 in the Writ Petition), the part-time employees working in the pre-primary section managed by Parent-Teachers' Association in Government School are entitled to some honorarium, as a matter of fact, the petitioner never received such a honorarium. In other words, disqualification if any, attached to the receipt of honorarium by virtue of the amended

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WA No. 1818 of 2010

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provisions of the Kerala Panchayat Raj Act would accrue only on the receipt of the payment and not on the declaration of right to receive, and therefore the petitioner submitted in the writ petition that the rejection of her nomination paper is not justified in law.

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We are of the opinion that the writ petition is required to be dismissed for more than one reasons. (1) In view of the bar contained under Article 243-O, interference in the election process of a local body is constitutionally prohibited during the progress of the election process. (2) Under the scheme of the Kerala Panchayat Raj Act, 1994, disputes pertaining to the election are required to be resolved by the competent court specified under Section 88 of the said Act by way of an election petition. Chapter X of the said Act deals with the election disputes. Section 102 occurred in Chapter X describes the various grounds on which an election can be declared void. It reads as follows:

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“ 102. Grounds for declaring election to be void .-(1) Subject to the provisions of sub-section(2) if the Court is of opinion-

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(a) that on the date of his election a returned candidate

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WA No. 1818 of 2010

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was not qualified, or was disqualified, to be chosen to fill the seat under this Act; or

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(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

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(ca) that the details furnished by the elected candidate under sub-section(1A) of Section 52 were fake; or

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(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-

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(i) by the improper acceptance of any nomination, or

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(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent; or

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(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or

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(iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder, the Court shall declare that the election of the returned candidate to be void.

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(2) If in the opinion of the Court a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the Court is satisfied-

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(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;

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(b) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and

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WA No. 1818 of 2010

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(c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the Court may decide that the election of the returned candidate is not void.

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Explanation .- In this section the term “agent” has the same meaning as in section 120.”

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It can be seen from Section 102(1)(c) that the

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improper rejection of a nomination paper, if established in an election dispute before the appropriate court, is a sure ground for declaring the election void without any further burden on the part of the candidates whose nominations were improperly rejected. Therefore there is a clear, efficacious alternative remedy available to the petitioner. Apart from the above, the adjudication of the dispute such as the one raised in the present writ petition requires an adjudication into the correctness of the facts stated by the petitioner, such as whether the petitioner has in fact resigned on a particular date before commencement of the election process and whether in fact the petitioner had received any honorarium as per Ext.P2 an exercise not normally undertaken by this Court under Article 226 of the Constitution of India.

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WA No. 1818 of 2010

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For the abovementioned reasons we do not see any reason to entertain this Writ Appeal and the same is dismissed

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at the admission stage.

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J.Chelameswar, Chief Justice.

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P.R. Ramachandra Menon, Judge.

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ttb

Theyyottuchira Nishath v. the Returning Officer and Others

Case brief

What is this about?

What did the court decide?

Theyyottuchira Nishath v. the Returning Officer and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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