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2008(3) Supreme 72
SUPREME COURT OF INDIA
(From Kerala High Court)
P.P. Naolekar & V.S. Sirpurkar, JJ.
V.A. Shabeer — Petitioner
versus
P.A. Niamathulla — Respondent
Appeal (civil) 2713 of 2008
(Arising out of SLP (Civil) No.14248 of 2007)
Decided on : 10-04-2008
(b) Kerala Panchayat Raj Act, 1994 – Section 42(2) – Section 42(2) is merely an empowering section declaring that the Assistant Returning Officer is competent to perform all or any of the functions of the Returning Officer – Drawing his power directly from the State Election Commission, he does not require any specific authorisation from the Returning Officer. (Paras 17 and 18)
(c) Kerala Panchayat Raj Act, 1994 – Section 43 – The words “authorised to perform” refer only to the functions which the Assistant Returning Officer ‘can’ perform or is ‘capable’ of performing under sub-section (2) of Section 42 – There is no necessity of any specific authorization on behalf of the Returning Officer in favour of the Assistant Returning Officer – A rigid reading of Section 43 of the Act may lead to a situation where the proviso to Section 42 would itself become otiose. (Para 18)
(d) Kerala Panchayat Raj Act, 1994 – Section 43 – It is unthinkable that for any constituency in the absence of returning officer, nobody could accept the nomination form or subscribe the oath – There cannot be a void during the period the election programme is on. (Para 21)
(e) Constitution of India – Article 243K(1) r/w sections 44 and 48A, Kerala Panchayat Raj Act, 1994 – State Election Commission allegedly issuing instructions – These instructions never brought on record either before the High Court or the Supreme Court till closing of the case – Not acceptable – Further, any instruction cannot override the provisions of the Act. (Para 26)
AIR 1969 SC 1111 – Distinguished.
Facts of the case:
1. 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.
2. 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.
3. The Election Petition was dismissed by the Election Tribunal.
4. The High Court came to the conclusion that the election was void.
Findings of the Court :
Any Officer acting as BDO is the Secretary of the block Panchayat and therefore Assistant Returning Officer notwithstanding his additional charge of the post of BDO.
Result : Appeal allowed with cost.
JUDGMENT
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 witnesses 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 :
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 de
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