Dismissed

Suresh Thaloor v. Kerala State Election Commission

Kerala HC5 Dec 2022WP(C)/1318/2021

Case brief

AI extract

What is this about?

Petitioner, an elected Panchayat member, challenged the rejection of his vote cast during an election for the Standing Committee for Health and Education, arguing the rejection was too technical. The Court dismissed the petition, holding that failure to sign the reverse side of the ballot under Rule 8(4) justifies rejection.

What did the court decide?

The writ petition is dismissed as it has no merit; the rejection of the ballot is upheld.

Suresh Thaloor Vs Kerala State Election Commission — Election Law | Kerala HC (2022)

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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 N.NAGARESH

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MONDAY, THE 5^TH DAY OF DECEMBER 2022/14TH AGRAHAYANA, 1944 WP(C) NO. 1318 OF 2021

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PETITIONER:

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SURESH THALOOR AGED 51 YEARS S/O. KRISHANKUTTY, VARIKIZHANGIL HOUSE, CHULLIODE P. O., WAYANAD DISTRICT - 673 592.

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BY ADVS. JOHN K.GEORGE SMT.M.B.SHYNI SRI.DEEPAK RAJ SMT.C.P.ROOPA

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RESPONDENTS:

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1 KERALA STATE ELECTION COMMISSION CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM - 695 033.

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2 MOHAMMED YOUSAF THE RETURNING OFFICER AND DEPUTY COLLECTOR (GENERAL), CIVIL STATION, KALPETTA, WAYANAD - 673 121. 3 MEENAKSHI RAMAN MALKKOLAAYANIMOTTAMMEL HOUSE, KAPPATTUMALA P. O., WAYANAD DISTRICT - 670 644.

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BY ADVS. SHRI.DEEPU LAL MOHAN, STANDING COUNSEL, STATE ELECTION COMMISSION, KERALA. SHRI.KODOTH SREEDHARAN, STANDING COUNSEL, STATE ELECTION COMMISSION, KERALA.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) No.1318 of 2021

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J U D G M E N T

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Dated this the 5^th day of December, 2022

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The petitioner, who is an elected member of Wayanad District Panchayat, has approached this Court seeking to declare that the rejection of the petitioner's vote casted on 11.01.2021 in the election of women representative of the Standing Committee for Health and Education of Wayanad District Panchayat is bad in law. The petitioner further seeks to set aside the result of the election on 11.01.2021 to elect the women representatives of the Standing Committee for Health and Education of Wayanad District Panchayat.

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The petitioner states that he is an elected member of Wayanad District Panchayat. Election to the Standing Committee for Health and Education was notified and Ext.P2 election notification was published on 01.01.2021. The election was held on 11.01.2021.

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The petitioner states that his vote alone was invalidated on the ground that the petitioner did not write his

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name and did not put his signature on the reverse side of the ballot paper. The rejection of the petitioner's vote is illegal and unwarranted, contends the petitioner. The rejection of the petitioner's vote has adversely affected and impacted the outcome of the election.

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The counsel for the petitioner submitted that Rule 8(4) of the Kerala Panchayat Raj (Standing Committee) Rules, 2000 gives the circumstances under which a ballot can be rejected. Rule 8(4) states that ''a ballot paper on which vote has been marked for none of the candidates or on which vote has been marked giving same priority to more than one candidate or the reverse of which does not bear the name and signature of the member who voted, shall be rejected and the rejected ballot papers shall be kept in separate cover''.

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The counsel for the petitioner pointed out that Rule 8 provides for a transparent election process. After putting the signature and writing name of a voter, the voter has to put the ballot in the ballot box kept at the place fully visible to the returning officer. Therefore, there is no question of dispute of

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identity of the voter. In the petitioner's case, it is beyond dispute that the petitioner was issued with a ballot paper, the petitioner has casted his vote, the petitioner has folded the ballot paper and he has put it in the ballot box. Therefore, the rejection of the petitioner's vote on the ground that he has not written his name and put his signature on the reverse side of ballot paper cannot stand the scrutiny of law. Such a stand would be too technical and would defeat the very purpose of the rules, contended the counsel for the petitioner.

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The counsel for the petitioner relied on the judgment of this Court in Benny Esthappan v. State of Kerala [2006 (1) KLT 921] wherein this Court held that correction or rectification of an entry made in the ballot paper will not result in rejection of the ballot paper. The counsel for the petitioner pointed out that when even a correction in the ballot paper cannot invalidate the ballot paper in view of the judgment of this Court, there is no rhyme or reason to reject

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the ballot paper of the petitioner when the identity of the petitioner is not in dispute.

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Standing Counsel for the 1^st respondent-State Election Commission entered appearance and resisted the writ petition. The Standing Counsel pointed out that the ballot paper can be rejected on three grounds in view of the provision in Rule 8(4). A ballot paper can be rejected when vote has been marked for none of the candidates. It can be rejected if vote has been marked giving same priority to more than one candidate. As per rules, a vote can be invalidated if the reverse of the ballot paper does not bear the name and signature of the member who voted.

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Rule 8(4) is a statutory rule. The validity of the statutory rule is not under challenge. The petitioner has not produced the minutes and challenged the minutes of the meeting. The order rejecting the petitioner's vote is also not produced by the petitioner. In view of the above, the writ petition is liable to be dismissed, contended the Standing Counsel for the petitioner.

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I have heard the learned counsel for the petitioner, the learned Standing Counsel representing the 1^st respondent

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and the learned counsel representing respondents 2 and 3.

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Rule 8 of the Kerala Panchayat Raj (Standing Committee) Rules, 2000 governs the manner of recording votes, counting of votes and declaration of the results in election. Rule 8 reads as follows:

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(1) The returning officer of the meeting shall issue a ballot paper in Form No, 1 appended to these rules to every elected member of a Panchayat who wishes to vote in the election to a Standing Committee and the ballot paper shall contain the names of all the contesting candidates.

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(2) Each member shall, immediately on receipt of the ballot paper, proceed to the place set apart for voting and record the vote by writing legibly on the ballot paper the priority given by him in the order of one, two, three and so on against the names of such number of candidates as may be elected, and after putting his signature and writing his name on the reverse of the ballot paper, fold the ballot paper and put it into the ballot box kept at a place fully visible to the returning officer.

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(3) The returning officer shall, on completion of the voting, open the ballot box in the presence of the members take out the ballet papers and count the priority votes obtained by each candidate.

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(4) A ballot paper on which vote has been marked for none of the candidates or on which vote has been marked giving same priority to more than one candidate or the reverse of which does net bear the name and signature of the member who voted, shall be rejected and the rejected ballot papers shall be kept in separate cover.

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(5) Result of the election shall be declared in accordance with the following procedure, namely :-

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(a) On counting the votes, the candidates, equal in number to that of vacant seats,

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securing the highest number of first priority votes shall be declared elected;

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(b) On counting the votes under clause (a), when the first priority, votes recorded to two or more candidates are equal land one or more members from among them have to be elected, the second priority votes recorded shall be added to the first priority votes secured by the respective candidates and the candidate or candidates who have secured the highest number of such votes shall be declared elected;

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(c) On counting the votes under clause (b), when the total priority votes are equal for two or more candidates and one or more members are to be elected from among them the third priority votes recorded shall, be added to the first and second priority votes secured by the respective candidates and the candidate or candidates securing highest number of such votes shall be declared elected;

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(d) On counting the votes under clause (c), when the total priority votes are equal for two or more candidates and one or more members are to be elected from among them, the counting of vote shall be conducted as given under the foregoing clauses and such counting shall be continued till members to all the vacant seats are elected;

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(e) On counting the votes under clause (d), if the total votes to more than one candidate comes to be equal while only one seat remains vacant, lot shall be drawn in the meeting for filling up of that post and the person whose name is drawn first from among the said candidates shall be declared elected.

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Note:—-While counting priority votes under the above sub-rule, total votes secured by a candidate shall be calculated, in the order that the number of first priority votes secured as zero if no first priority vote has been secured and the number of second

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priority votes secured as zero, if no second priority vote has been secured by the candidate and so on.

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It is evident from Rule 8(4) that if the ballot paper does not contain on its reverse, the signature of the candidate and name, the same is liable to be rejected.

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The right granted to any voter to vote in an election, is a statutory right. In Panchayat Standing Committee Elections, it is the Kerala Panchayat Raj (Standing Committee) Rules, 2000 which give right to members of a Panchayat to cast their votes. Rule 8 specifically describes how to caste a vote and enumerates the circumstances under which a vote can be invalidated. Rule 8(4) specifically provides that if a voter is not putting his name and signature on the reverse of a ballot paper, the same is liable to be rejected. When the statute prescribes a procedure for voting, the vote has to be casted in that manner alone.

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The counsel for the petitioner would argue that in Benny Esthappan (supra), this Court has considered a similar issue and has held that even when there is a correction in the ballot paper, the vote is liable to be counted.

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In the judgment in Benny Esthappan (supra), this

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Court held that Rule 8(4) does not provide the bonafide correction of an entry as a ground for rejection of the ballot paper. It also does not prescribe that any correction or rectification of an entry made in the ballot paper will result in the rejection of the ballot paper.

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What is laid down by this Court in the judgment in Benny Esthappan (supra) is an issue relating to the intention of the voter. In this case, it is not the intention of the voter which is relevant. The petitioner did not caste his vote in accordance with Rule 8 of the Kerala Panchayat Raj (Standing Committee) Rules, 2000. Therefore, I find that rejection of ballot of the petitioner is justified.

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I find no merit in the writ petition and the writ petition is therefore dismissed.

Sd/-

N. NAGARESH

JUDGE

sss

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APPENDIX OF WP(C) 1318/2021

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PETITIONER'S EXHIBITS

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EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE DECLARING THE PETITIONER AS THE ELECTED MEMBER OF THE DISTRICT PANCHAYATH ISSUED BY THE RETURNING OFFICER DATED 16.12.2020. EXHIBIT P2 A TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 01.01.2021. EXHIBIT P3 A TRUE COPY OF THE OBJECTION RAISED BY THE PETITIONER AND SUBMITTED BEFORE THE 2ND RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE NOTICE DATED 15.01.2021 RECEIVED BY THE PETITIONER INTIMATING THAT THE ELECTION OF THE CHAIRMAN OF THE STANDING COMMITTEE IS SCHEDULED ON 18.01.2021 AT 3 P.M.

Suresh Thaloor v. Kerala State Election Commission

Case brief

What is this about?

What did the court decide?

Suresh Thaloor v. Kerala State Election Commission

Case brief

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What did the court decide?

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