Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
CASE NO.:
Appeal (civil) 2713 of 2008
PETITIONER:
V.A. Shabeer
RESPONDENT:
P.A. Niamathulla
DATE OF JUDGMENT: 10/04/2008
BENCH:
P.P. Naolekar & V.S. Sirpurkar
JUDGMENT:
J U D G M E N T
Reportable
CIVIL APPEAL NO. 2713 OF 2008
(Arising out of SLP (Civil) No.14248 of 2007)
V.S. SIRPURKAR, J.
1. Leave granted.
2. This appeal is directed against the judgment of the learned Single
Judge of the Kerala High Court whereby the learned Single Judge allowed
the appeal filed against the order of the Trial Court and declared the
election of the appellant void.
3. The appellant and the respondent were the candidates who
contested the election from Ward No.2 of Alangad Block Panchayat held
on 24th September, 2005. The appellant was declared elected. The
candidate who lost the election (respondent herein) challenged the election
by way of an Election Petition before the Election Tribunal mainly on two
grounds. It was first contended that the officer who accepted the
nomination papers of the appellant had no authority to receive the same
and secondly the appellant had not made or subscribed an oath or
affirmation before the Returning Officer or any other person authorized by
the State Election Commission and, therefore, he was not qualified to fill a
seat.
4. The Election Petition was opposed on the ground that the election
petition was not maintainable and that it was filed after the expiry of the
period of limitation. It was contended that the appellant had signed the
oath or affirmation according to the form set out for the purpose in the First
Schedule of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as
"the Act") and that the appellant was fully qualified to contest the election.
It was also pointed out that the nomination papers were filed before the
Assistant Returning Officer who was fully competent to verify the
nomination papers and receive the same. Hence there was absolutely no
ground to declare the election as void.
5. The Election Petitioner (respondent herein) examined five witness
and marked 11 documents while the appellant did not adduce any
evidence. The Election Tribunal (2nd Additional District Judge, Ernakulam)
came to the conclusion that the oath or affirmation of the appellant was
made before the Assistant Returning Officer and it did not matter that the
Assistant Returning Officer had no authority. The Trial Court applying "de-
facto doctrine" held that oath was before an appropriate authority and as
per the Rules. The Election Tribunal also held that the officer who
received the nomination papers was holding the charge of Block
Development Officer and was an Assistant Returning Officer and as such
he was competent to receive the same. The Election Petition was,
therefore, dismissed. The appeal was filed against this order before the
High Court on two grounds, they being:
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
i) The appellant had not made and subscribed the oath or
affirmation before a person authorized by the State Election
Commission and thereby he was not qualified for being
chosen to fill the seat in the Panchayat.
ii) The appellant had not delivered the nomination papers to the
Returning Officer or to the Assistant Returning Officer duly
authorized by the Returning Officer who had authority to
receive the same.
6. The High Court came to the conclusion that on both the counts the
election was void. The elected candidate, the appellant herein now comes
before us by way of the present appeal.
7. Shri C.S. Raja, Senior Advocate, appearing on behalf of the
appellant, contends before us that the High Court has committed a grave
error in holding that the appellant had not made and subscribed the oath or
affirmation before the Returning Officer or any other person authorized by
State Election Commission and thereby he was not qualified to be chosen
to fill a seat in the Panchayat. Learned counsel also urged that the High
Court was in grave error in holding that the officer before whom the
nomination papers were tendered by the appellant had no authority to
receive the same.
8. As against this, the respondent who appeared in person, supported
the order of the High Court relying on the various provisions of the Act. It
will be, therefore, for us to consider as to whether the High Court was right
in declaring the election of the appellant as void.
9. It is an admitted fact that the State Election Commission had
appointed Deputy Director of Fisheries (Zonal) as the Returning Officer for
this election. It is also an admitted position that one Smt.P.C. Mary was
working as Block Development Officer, Alangad and she retired from
service on the Afternoon of 31.8.2005. There is an order on record (vide
Exhibit X-9) passed by District Collector bearing No.RD.299/2005 dated
31.8.2005 to the following effect:
"Smt.P.C. Mary, Block Development Officer, Alangad retired
from service on the A.N. of 31.8.2005. She is relieved of her
duties as Block Development Officer on the A.N. of 31.8.2005.
Shri O.G. Venugopal, Extension Officer (IRD) will hold full
additional charge of the BDO, Alangad till further orders."
Thus it was Shri O.G. Venugopal who was holding the charge for Mrs.P.C.
Mary. It was this Mr.O.G. Venugopal who was holding the additional
charge of Block Development Officer, had accepted the nomination of the
appellant and it was before him alone that the appellant had taken the
oath. The High Court has found fault with both the aspects.
10. At this juncture it will be proper to see a few provisions of the Act on
which the parties rely. Section 29 of the Act provides for the qualifications
for Membership of a Panchayat. Section 29(e) is as under:
"29. Qualifications for membership of a Panchayat \026 A
person shall not be qualified for chosen to fill a seat in a
Panchayat at any level unless:
(a) xxx xxx
(b) xxx xxx
(c) xxx xxx
(d) xxx xxx
(e) he makes and subscribes before the returning officer or
any other person authorized by the State Election Commission
an oath or affirmation according to the form set out for the
purpose in the first schedule."
Sections 40, 41, 42, 43 as are relevant for our purpose read as under:
"40. General duties of district election officer\027Subject to
the superintendence, direction and control of the State
Election Commission, the district election officer, shall
coordinate and supervise all work, in the district in connection
with the conduct of all elections to the Panchayats in the
district.
41. Returning Officers \026 For every Panchayat, for every
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
election to fill a seat or seats in the Panchayat, the State
Election Commission shall, in consultation with the
Government, designate or nominate one or more returning
officer who shall be an officer of the Government or of a local
self Government Institutions.
Provided that nothing in this section shall prevent the
State Election Commission from designating or nominating the
same person to be the returning officer for more than one
Panchayats lying adjacent.
42. Assistant Returning Officers \026 (1) The State Election
Commission may appoint one or more persons as assistant
returning officers to assist any returning officer in the
performance of his functions.
(2) Every assistant returning officer shall, subject to the
control of the returning officer, be competent to perform all or
any of the functions of the returning officer.
Provided that no assistant returning officer shall perform
any of the functions of the returning officer which relates to the
scrutiny of nominations unless the returning officer is
unavoidably prevented from performing the said function.
43. Returning officer to include assistant returning
officers performing the functions of the returning officer \026
References in this Act to the returning officer shall, unless the
context otherwise requires, be deemed to include an assistant
returning officer performing any function which he is
authorized to perform under sub-section (2) of Section 42."
The contention of the Election Petitioner (respondent herein) was that it
was Smt.P.C. Mary alone who was authorized to accept the nomination
papers and also to subscribe the oath to the appellant and since she had
superannuated on 31.8.2005, and was replaced by Shri O.G. Venugopal,
Extension Officer, IRD and since Shri O.G. Venugopal was not authorized
specifically by the State Election Commission or the Returning Officer
either to subscribe the oath or to accept the nomination papers, the
appellant in effect had not taken oath before a properly authorized officer
nor had he tendered his nomination papers before a properly authorized
officer.
11. Admittedly, Shri O.G. Venugopal was holding a full additional charge
as per the order of the Collector from 31.8.2008 upto 6.9.2005 when Smt.
M.K. Padmavaty took charge in the forenoon. The High Court seems to
have accepted the contention that since Shri Venugopal was not
specifically authorized by the State Election Commission, or even by
Returning Officer, he had no authority to either accept the nomination
papers or subscribe oath to the candidates who were tendering the
nomination papers. It cannot be disputed that every candidate has to
subscribe an oath before the Returning Officer or any other person
authorized by the State Election Commission. It has been held by the High
Court that Smt.P.C. Mary was appointed as an Assistant Returning Officer
by the State Election Commission and not by the District Collector. While
she was a Block Development Officer, Shri O.G. Venugopal (PW5) was
not even a Block Development Officer, he was merely discharging the
functions of Block Development Officer as a stop gap arrangement by
virtue of an order of District Collector. The High Court also held that the
State Election Commission has not passed any order designating Shri
Venugopal (PW5) as the Assistant Returning Officer. It was on this ground
that the High Court found that Shri Venugopal did not have a proper
authorization.
12. The High Court has dealt with Sections 39 to 43 of the Act and
ultimately held that the combined reading of Sections 42 and 43 of the Act
would make it clear that a Returning Officer can authorize the Assistant
Returning Officer to perform all or any of the functions of the Returning
Officer except the function of Returning Officer which relates to the scrutiny
of nomination. The High Court further held that there was no material
before the court to hold that Sairabhanu (PW2) who was the Returning
Officer had authorized Shri O.G. Venugopal to discharge the function of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
Returning Officer. The High Court held that only other evidence relied on
by the respondent (appellant herein) was Exhibit X-8, a notification dated
29.8.2005 also could not empower Shri O.G. Venugopal to act as it could
not be said as an authorized by the Returning Officer.
13. Learned counsel for the appellant invited our attention to the
notification dated 29.8.2005 issued by the State Election Commission.
The notification which is Exhibit X-8 before the Election Tribunal, reads as
under:
"In exercise of the powers conferred under sub-section (1) of
Section 42 of the Kerala Panchayat Raj Act, 1994 (Act 13 of
1994), the State Election Commission hereby appoints the
Secretary of each block panchayat as the Assistant Returning
Officer to assist the Returning Officers notified in Notification
No.192/2005/SEC dated 18th August, 2005 and 191/2005/SEC
dated 18.8.2005 of the State Election Commission."
Learned counsel also pointed out before us and it was not contradicted
that the District Collector was designated by the State Election
Commission as the District Election Officer. It will be seen from Section 40
that subject to superintendence, direction and control of the State Election
Commission, the District Election Officer is duty bound to coordinate and
supervise all the work in the whole District in connection with the conduct
of all elections to the Panchayat in the District. Therefore, it is obvious that
the Collector, Ernakulam, who was appointed as a District Election Officer
was to coordinate and supervise all work.
14. It is also an admitted position that Shri O.G. Venugopal (PW5) was
posted in place of Mrs.P.C. Mary, the erstwhile Block Development Officer
and a Secretary of the concerned Block Panchayat and that atleast for that
period Shri O.G. Venugopal was holding full additional charge of the BDO,
Alangad Block Panchayat. It is, therefore, obvious that Shri O.G.
Venugopal, who was an Extension Officer during the period from
31.8.2005 upto 6.9.2005, was acting as a Block Development Officer and
the Secretary to the Block Panchayat for all practical purposes. Merely
because Shri O.G. Venugopal was holding additional charge of the BDO,
Alangad, it did not mean that he was not holding the full charge of the post
of BDO. It was, therefore, obvious that he was, during that period, working
as a Secretary of the Block Panchayat. This position could not be and
cannot be contradicted. Now, revereting back to the aforementioned
notification dated 29.8.2005, it is obvious that the said notification
appointed "Secretary of each Block Panchayat" as the "Assistant Returning
Officer" to assist the Returning Officer for that particular Block.
15. There is also no dispute that Sairabanu (PW2) was the Returning
Officer under the notifications by the State Election Commission dated 18th
August, 2005. Once this position is clear, the very look of the notification
suggests that the Secretaries of each Block were not empowered, under
the said notification, in their name. It was only the incumbent of the office
of the Secretary of each Block Panchayat who was empowered to act as
the Assistant Returning Officer. It, therefore, naturally follows that every
incumbent who was working, at the relevant time, as the Secretary of the
Block Panchayat was empowered to act as the Assistant Returning Officer.
There is no reason to hold that Shri O.G. Venugopal was not working as
the Secretary to the Block Panchayat, Alangad. The order, quoted by us,
passed by the District Collector who was also the District Election Officer,
specifically provided that Shri O.G. Venugopal was to hold full additional
charge of BDO. Resultantly he was also the Secretary of the Block
Panchayat and was acting as such. Once this position is clear, then it is
obvious that he had all the powers, authority and the responsibilities of an
Assistant Returning Officer. At this juncture it will be necessary to note the
specific provision under Section 42(2) of the Act under which every
Returning Officer, subject to the control of the Returning Officer, would be
competent to perform all or any of the functions of the Returning Officer.
Thus by necessary logic Shri O.G. Venugopal was competent to perform
all or any of the functions of the Returning Officer including subscribing
oath and/or accepting the nomination papers.
16. The proviso to sub-section (2) of Section 42, however, specifically
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
provides that the Assistant Returning Officer could not perform any of the
functions which relate to the scrutiny of nominations unless the Returning
Officer is unavoidably prevented from performing the said function. This
proviso would mean that in an emergent situation where the Returning
Officer is not able to function by some unforeseen event as a Returning
Officer, the Assistant Returning Officer could also go ahead with the task
of scrutinizing the nominations. That, however, would depend upon the
evidence. In the present case this was not the situation. All that Shri O.G.
Venugopal did was to act as the Assistant Returning Officer owing to his
holding a full charge of the post of the Secretary to the Block Panchayat. It
is also an admitted position and not contradicted before us that every such
BDO for a Block Panchayat acts also as a Secretary to the Block
Panchayat. If the language and spirit of Section 42(2) is realized, then
there is no question of holding that Shri O.G. Venugopal did not have any
authority to act as the Assistant Returning Officer.
17. In para 17 of its judgment, the High Court though had noticed Exhibit
X-8, curiously observed that such authorization has to be given by the
Returning Officer. We do not see, in the language of Section 42(2) any
authorization by the Returning Officer for an Assistant Returning Officer to
perform any function. Section 42(2) is merely an empowering section
which declares that the Assistant Returning Officer is competent to perform
all or any of the functions of the Returning Officer. However, his functions
are subject to the control of Returning Officer, meaning thereby that he can
be prohibited by the Returning Officer to do a particular function or his
actions would be subject to the rigid control of the Returning Officer.
However, in order to clothe him with the competence to act, he does not
require any specific authorisation from the Returning Officer.
18. Indeed the observations of the High Court in its judgment, more
particularly in para 17 are clearly in total derogation of the specific
language of Sections 42(1) and 42(2) of the Act. It is to be noted that
Assistant Returning Officers are to be appointed by the State Election
Commission and not by the Returning Officer. The Assistant Returning
Officers draw their powers directly from the State Election Commission.
We have already pointed out that the State Election Commission, in the
present case, had empowered all the Secretaries of the Block Panchayat
as the Assistant Returning Officers. It is not necessary that a Returning
Officer should be assisted only by one Assistant Returning Officer.
Therefore, in cases where there are more than one person acting as the
Secretaries (which is unlikely case), all such Assistant Returning Officers
could assist the Returning Officer. The language of sub-section (1) of
Section 42 is more than explicit to so suggest. The High Court demanded
some evidence to show that the Assistant Returning Officer of Ward II,
Alangad Block Panchayat was authorized by the Returning Officer to
discharge the functions of Returning Officer. We do not see any such
necessity from the language of Section 42 of the Act. The High Court has
probably made the observations owing to the language of Section 43 of the
Act which provides that wherever the Returning Officer is referred to in the
Act, it would be deemed that the reference includes the Assistant
Returning Officer performing any function which he/she is authorized to
perform under sub-section (2) of Section 42. The words in Section 43 "any
function which he is authorized to perform under sub-section 2 of Section
42" do not mean to suggest that there has to be an authorization, much
less in writing by the Returning Officer in favour of the Assistant Returning
Officer. The words refer only to the functions which the Assistant
Returning Officer ’can’ perform or is ’capable’ of performing under sub-
section (2) of Section 42. We do not see any necessity of specific
authorization on behalf of the Returning Officer in favour of the Assistant
Returning Officer. If we read Section 43 of the Act as rigidly as the High
Court has done, then there may be a situation where the proviso to Section
42 would itself become otiose.
19. It will be seen that under the proviso during the emergent situation
where the Returning Officer is unavoidably prevented to perform the
functions of scrutiny of nominations, the Assistant Returning Officer can go
ahead even with that function. Now, if there arises a situation that on the
date fixed in the election programme for scrutiny of nominations, the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
Returning Officer meets with an accident and is not able to communicate
anything to the Assistant Returning Officer, under such emergent situation,
the Assistant Returning Officer can and has to go ahead with the task of
scrutinizing the nominations because the scrutiny must be held on that
particular date as per the election programme. If we insist on any such so-
called written authorization, the whole proviso would be rendered
meaningless. This aspect has completely been missed by the High Court.
20. We are, therefore, of the clear opinion that Shri O.G. Venugopal who
was, at the relevant time, working as a Secretary to the Block Panchayat
and was holding a full additional charge of the Block Development Officer
for Alangad Block Panchayat was quite competent to subscribe oath to the
appellant. He was also quite competent to accept the nomination papers.
21. It is obvious that Shri Venugopal had to accept the nomination
papers and subscribe oath on the day that he did introduce the oath to the
appellant and also accepted his nomination papers due to the absence of
the Returning Officer. It is unthinkable that during the period when the
election programme is on, there would be nobody to accept the nomination
form and also to introduce the oath to a person tendering his nomination
form. Such situation can never be imagined. There could not be a void
during the period when the election programme is on. It is unthinkable that
for the Alangad constituency in the absence of returning officer, nobody
could accept the nomination form or subscribe the oath during the period
from 31.8.2005 to 6.9.2005. This is also one of the reasons why we are of
the opinion that the judgment of the High Court has become erroneous.
22. Last but not the least, the acceptance of nomination papers of the
appellant and the subscription of oath by Shri Venugopal (PW5) to the
appellant was never objected to either by the Returning Officer or by the
subsequent BDO who took the charge of that post from PW5 on 6.9.2005.
Again all these objections were also not raised at the time when the
scrutiny of the nomination papers was done. Ofcourse that may not be the
only reason to throw out the election petition but that is certainly an
additional factor to be taken into consideration.
23. Once this position is arrived at, there would be no necessity to even
refer to the de facto doctrine as has been done by the Election Tribunal
because we have considered that Shri Venugopal (PW5) was perfectly
competent to accept the nomination papers as also to subscribe the oath.
24. The High Court in para 18 of its judgment has referred to Exhibit X-2,
a notification and has held that since Shri Venugopal (PW5) could not
come in the category of a Returning Officer, he could not have introduced
oath. The observation is patently incorrect in view of what we have held
above relying on Sections 42 and 43.
25. It has also been held that the District Collector was not competent to
confer any powers of Returning Officer or Assistant Returning Officer to
PW5. In our opinion this observation is also not correct in view of the fact
that for a limited period between 31.8.2005 to 6.9.2005 Shri Venugopal
(PW5) was actually acting as the Secretary to the Block Panchayat, since
he was holding a full additional charge of the Block Panchayat. His very
appointment to that post would clothe him by the powers under the State
Election Commission vide notification Exhibit X-8. The other authorities
referred to by the High Court in its judgment are not apposite to the
controversy in question.
26. The respondent herein has tendered arguments in writing after the
matter was closed. We have gone through the said written note of
arguments carefully. In paras 1 and 2 again the same argument is
repeated that PW5 did not have a proper authorization from the Returning
Officer. An absurd statement has thereafter been made to the following
effect:
"There was only Exhibit X-8(a) endorsement, which is also
disputed as it was only the creation done just before producing
it before the court for creating false evidence, of the returning
officer which is quoted in para 17 of the impugned judgment."
We are surprised at such a statement being made without any basis,
rhyme or reason. This question of Exhibit X-8(a) being false document
was not even raised before the High Court. It is then expressed in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
same paragraph that document Exhibit X-7(a) was got proved before the
trial court which contained the instructions from the State Election
Commission, issued in exercise of powers under Article 243K(1) of the
Constitution of India read with Sections 44 and 48A of the Act and that the
said instructions included that there has to be a specific authorization of
the Returning Officer in favour of the Assistant Returning Officer. Firstly
this document was never referred to during the arguments before us and it
is only now, after the case is closed and the judgment reserved that the
point is being raised. Further, the said document was never produced
before us by the respondent who chose to argue his case in person.
Lastly whatever may be the instructions from the State Election
Commission, they cannot override the provisions of the Act which we have
taken into consideration for holding that no such specific authorization was
ever necessary. The contention is, therefore, rejected.
27. A question has been raised then that the appointment and control of
the Secretaries of the Panchayats are governed by Sections 179 and 180
of the Act. It is, however, not clarified as to how there is any breach of
Sections 179 and 180 of the Act. We have already explained that the
District Collector had empowered PW5, with the full charge of Smt.P.C.
Mary. If, Smt.P.C. Mary was acting as the Secretary of the Block
Panchayat then automatically PW5 would get all those powers by his
holding the full charge of Smt.P.C. Mary. The other contentions raised in
paras 4 and 5 of the written arguments have already been considered and
they are nothing but the repetition of the earlier arguments. Reference to
Articles 243F(a) and 191(e) of the Constitution of India is wholly
unnecessary.
28. In para 5 again the question regarding the oath has been raised.
There can be no doubt that taking of the oath is a sine qua non for a
proper candidature. Again an absurd statement is to be found to the
following effect:
"If so that will hit directly the mandate of Article 243F, 173(a)
and 191(e) of the Constitution of India read with Section
36(2)(a) of the Representation of the People Act, 1951read
with the decision of the Hon’ble Apex Court in Shaik Abdul
Rahman v. Jagat Ram Aryan [AIR 1969 SC 1111).
The contentions raised in paras 5(a) and 5(b) on the basis of the reported
decision in Shaik Abdul Rahman (supra) are completely meaningless.
Further contentions raised in para 5(b) are nothing but the repetition of the
earlier contentions. It has already been explained by us earlier that it was
not necessary for PW5 to be in the rank of gazetted officer in the State
service. The respondent has completely misread Exhibit X-2(a), the
notification issued under Section 29(a) of the Act.
29. It is suggested in para 5(c) that by Exhibit X-9, the District Collector
had provided the full additional charge only of the Block Development
Officer, Alangad to PW5 and not that of the Secretary of Block Panchayat,
Alangad. This is a complete misreading of the notification. What was
authorized by the said notification was the full charge of Smt.P.C. Mary.
Once it is an admitted position that the BDOs were acting as the Secretary,
Block Panchayat and more particularly since Smt.P.C. Mary was acting as
the Secretary, PW5 would enjoy the same powers. The contentions raised
in para 5(c) has, therefore, to be rejected.
30. The contentions raised in para 5(d) regarding Section 52 of the Act
read with Rule 6 of the Kerala Panchayat Raj (Conduct of Election) Rules,
1995 is totally irrelevant. Some other contentions have been raised at
page 9 of the Note in para 5 which should in fact be para 6. The
contentions are again in respect of the authorization under Section 43 of
the Act and it is apprehended that in the absence of such authorization the
election machinery will break down. We only say that since the Assistant
Returning Officer has to act under the control and supervision of the
Returning Officer, the apprehension is not only unfounded but absurd. We
are not prepared to disbelieve in the State machinery.
31. In para 6(a) a further question is raised based on Sections 52(1) and
Section 55(2)(b) of the Act and it is suggested that no other person or
officer can perform all or any of the functions of the Returning Officer of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
conducting the elections. We have already shown earlier the scope and
the powers of the Assistant Returning Officer. The contention has,
therefore, to be rejected.
32. Lastly it is suggested that the District Election Officer has no
authority to appoint any person as Assistant Returning Officer without the
concurrence of the State Election Commission. That may be so. In this
case the District Election Officer has not appointed PW5 as Assistant
Returning Officer. It is because of Notification Exhibit X-8(a) that PW5
could ipso facto take the authorization from the State Election Commission
to act as the Assistant Returning Officer. We, therefore, find no merits in
the arguments.
33. In view of the above, we allow this appeal, set aside the order of the
High Court and hold that the Election Tribunal was right in upholding the
election and dismissing the election petition. Counsel’s fee fixed at
Rs.10,000/-.