Allowed

Shahina Kanhirala v. Kerala State Election Commission

Kerala HC27 Jun 2016WP(C)/463/2016

Case brief

AI extract

What is this about?

This writ petition challenged the election of the petitioner to the Welfare Standing Committee of the Mampad Grama Panchayat. The High Court allowed the petition, ordering that the election review cancelled by the Returning Officer be so stayed as the petitioner was declared elected by this Court. The previous election of the rival candidate was set aside, and the petitioner was declared elected.

What did the court decide?

The petition was allowed; the Returning Officer's review of the election result was cancelled; the petitioner was declared elected to the Welfare Standing Committee.

Shahina Kanhirala Vs Kerala State Election Commission — Election Law | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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MONDAY, THE 27TH DAY OF JUNE 2016/6TH ASHADHA, 1938

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WP(C).No. 463 of 2016 (G)

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PETITIONER(S)/PETITIONER:

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SHAHINA KANHIRALA

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W/O.YAHIYA KHAN KANCHIRALA, KANCHIRALA HOUSE, VARTHICHOLA, MAMPAD P O, VARTHICOLA, MALAPPURAM DISTRICT 676542

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BY ADVS.SRI.P.CHANDRASEKHAR SMT.UMA SRI.K.NANDAKUMAR SMT.V.A.HARITHA SMT.MARY RESHMA GEORGE SMT.P.M.MAZNA MANSOOR

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RESPONDENT(S)/RESPONDENTS:

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1. KERALA STATE ELECTION COMMISSION REP BY SECRETARY, THIRUVANANTHAPURAM 695033

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2. THE RETURNING OFFICER G-18, MAMPAD GRAMA PANCHAYATH, SUPERINTENDENT OF SURVEY AND LAND RECORDS, RESURVEY, MANJERI 676121

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3. SAROJINI GOPALAN

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MEMBER, MAMPAD GRAMA PANCHAYATH, MEPADAM 676542

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4. SUHARA PANANILATH MEMBER, MAMPAD GRAMA PANCHAYATH, WARD NO 13, MAMPAD 676542

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R3 BY ADV. SRI.V.G.ARUN R3 BY ADV. SRI.T.R.HARIKUMAR R2 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-06-2016, ALONG WITH WPC. 2829/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 463 of 2016 (G)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1:A TRUE COPY OF THE NOTICE NO A1-1073/15 DTD 21/12/2015 OF THE 2ND RESPONDENT

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P2:A TRUE COPY OF THE MINUTES OF THE ELECTING OF THE STANDING COMMITTEE MEMBERS OF MAMPAD GRAMA PACHAYATH HELD ON 1/1/2016

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RESPONDENT(S)' EXHIBITS:

NIL

// TRUE COPY //

P.A TO JUDGE

K. VINOD CHANDRAN, J.

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=====================

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W.P.(C) Nos.463 of 2016 - G and

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2829 of 2016 - C

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====================== Dated this the 27^th day of June, 2016

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J U D G M E N T

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The petitioners in both the writ petitions challenge

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the proceedings of an election to the Welfare Standing Committee of the Mampad Grama Panchayat. One Sarojini Gopalan, who is the petitioner in W.P.(C) No.2829 of 2016 was a candidate to the said election along with Shahina Kanhirala, who is the petitioner in W.P.(C) No.463 of 2016. When the election was held from amongst the Panchayat Committee members totaling 19, both the petitioners were declared to have obtained only 9 votes each. The election process was one of single transferable vote. There were three preferences, in the ballot paper and there were also three candidates. The

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petitioners herein and the 5^th respondent in W.P.(C) No.2829 of

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W.P.(C) Nos.463 of 2016 - G and 2829 of 2016 - C

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2016; were the three candidates.

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The division of seats were in favour of Sarojini

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Gopalan by one;Since there were 10 Committee members, who belonged to her party/front. The result was tied only because one of the members, who expressed the first preference vote in favour of Sarojini Gopalan did not mark a third preference. After declaring the elections to be tied, a lot was conducted and Shahina Kanhirala was declared to be elected. Subsequently, the Returning Officer contacted the office of the Election Commission, who found defect in such procedure, since the election was only to one seat and there need be expressed only the first preference vote. The Returning Officer

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hence in the after noon reviewed the election and found Sarojini Gopalan, to have won.

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The petitioner in W.P.(C) No.463 of 2016

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challenged the decision of the Returning Officer; on the short

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W.P.(C) Nos.463 of 2016 - G and 2829 of 2016 - C

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ground that the Returning Officer did not have the power to review his decision. The learned Standing Counsel appearing for the Election Commission also submits that the Election Commission was not aware of the fact that the Returning Officer had declared the results and had merely expressed his opinion, when clarification was sought over telephone.

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In any event, the election of the petitioner in W.P.(C) No.463 of 2016 is challenged by the other petitioner in W.P.(C) No.2829 of 2016. The ballot papers have been handed over across the bar by the learned Standing Counsel. The alleged objectionable ballot paper shows one of the members having expressed his first and second preference votes and left the other column blank. As has been affirmed by the learned Standing Counsel for the Election Commission, there can be no default found on such preference being not expressed, especially since there was only one vacancy to which election

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W.P.(C) Nos.463 of 2016 - G and 2829 of 2016 - C

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is conducted. Even otherwise there could be no fault found if

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only one or two preferences are expressed since that is the prerogative of the voter.

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W.P.(C) No.463 of 2016 would also stand allowed

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cancelling the review made of the declaration of results. W.P.(C)No.2829 of 2016 would also stand allowed setting aside the election of the 4^th respondent in the said writ petition. The petitioner in W.P.(C)No.2829 of 2016 would be declared as elected to the Welfare Standing Committee of the 3^rd respondent Panchayath. The order in W.P.(C) No.463 of 2016 would be of no consequence, since the election of the petitioner therein has been set aside by this Court. It is also submitted by the learned Counsel for the petitioner in W.P.(C) No.2829 of 2016 that she had been, after the declaration of results in the election to the Welfare Standing Committee, nominated to the Finance Committee; which would

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W.P.(C) Nos.463 of 2016 - G and 2829 of 2016 - C

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automatically stand vacated. In such circumstance, the election of the Chairman of the Welfare Standing Committee, which has been stayed in W.P.(C) No.2829 of 2016 would be proceeded with in accordance with law.

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The writ petitions would stand allowed with the consequence of the petitioner in W.P.(C) No.2829 of 2016 being elected to the Welfare Standing Committee. No costs.

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Sd/-

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K. VINOD CHANDRAN, JUDGE

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SB/27/06/2016

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// true copy //

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P.A to Judge

Shahina Kanhirala v. Kerala State Election Commission

Case brief

What is this about?

What did the court decide?

Shahina Kanhirala v. Kerala State Election Commission

Case brief

What is this about?

What did the court decide?

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