IMPORTANT POINTS
The Returning Officer made a mistake in having announced the name of Sri.T.M.Rasheed, even without entering into the second stage of the process of election- This was wholly impermissible and beyond his competence and therefore, his action can only be seem to be null and void, it being without legal sanction-Had there been necessary quorum and no pandemonium, as asserted by the Returning Officer, the next stage of the election process could have been done on the same day by the said Officer, when he became aware of the mistake he committed, but he was unable to do so for the reasons stated in the report before the Election Commission.

JUDGMENT :

1. The elections to the chairperson of the Erattupetta Municipality was conducted by the State Election Commission in a meeting of its councillors held on 16.10.2019.

2. Three persons offered themselves as candidates, namely Sri.T.M.Rasheed, Sri.V.M.Siraj and Smt.T.M.Laila Pareed.

3. In the voting that ensued, Sri.T.M.Rasheed secured twelve votes, while Sri.V.M.Siraj secured eleven and Smt.T.M.Laila Pareed secured three.

4. The Returning Officer for the election announced that Sri.T.M.Rasheed is the successful candidate; but he was thereupon accosted by various other members, including Sri.V.M.Siraj, alleging that the said announcement is illegal and unlawful, since it contravenes Rule 8(7)(b) of the Kerala Municipality (Election of Chairperson and Deputy Chairperson) Rules, 1995 (hereinafter refers to as 'the Rules' for short).

5. As per the afore Rule, when there are more than two candidates and if no candidate obtains votes more than the total number of votes obtained by all the other candidates after the voting, then the candidate who obtained the least number of votes will have to be eliminated and voting will need to be repeated among the remaining candidates in the fray.

6. On being aware of this, the Returning Officer appears to have suspended the meeting and to have intimated the Election Commission through his report. In the said report, he says that he made an attempt to continue with the meeting but that he was unable to do so because, by then, many members had left and the others created a pandemonium.

7. The afore narration is an apercus of the factual circumstances presented in the two writ petitions, which I am considering herein. These two petitions require to be considered together because they have been filed by opposing candidates and whose contentions are inter- layered, though contrarian to each other.

8. W.P.(C) No. 28034 of 2019 has been filed by Sri.T.M.Rasheed seeking a declaration that he has been validly elected as the Chairperson of Erattupetta Municipality; alternatively impelling a challenge to Rule 8(7) (b) of the Rules, contending it to be ultra-vires the Constitution of India and being beyond legislative capacity.

9. While so, W.P.(C) No.28771 of 2019 was filed by Sri.V.M.Siraj with the prayer that the State Election Commission be directed to call for fresh elections, through a new notification to be issued, under Section 12(5) of the Kerala Municipality Act (hereinafter referred to as 'the Act' for short); with an adjunct prayer that Sri.T.M.Rasheed be not declared as having been validly elected in the meeting held on 16.10.2019.

10. I have heard Sri.S.Sreekumar, learned Senior Counsel, instructed by Sri.P.Martin Jose, learned counsel appearing for Sri.T.M.Rasheed; Sri.P.C.Sasidharan assisted by Sri.P.E.Sajal, learned counsel appearing for Sri.V.M.Siraj; Sri.V.S.Saleem, learned counsel appearing for Smt.T.M.Laila Pareed, who has been arrayed as a respondent in both these cases; Sri.Murali Purushothaman, learning Standing Counsel for the Election Commission and the Returning Officer and Sri.Georgekutty Mathew, learning Standing Counsel appearing for Erattupetta Municipality.

11. As I have indicated above, the essential points of departure between the rival parties are whether Sri.T.M.Rasheed is entitled to be declared as being elected; or whether further processes are required to be taken by the Election Commission -either to notify fresh election or to continue from where it was stopped earlier.

12. Sri.S.Sreekumar, learned Senior Counsel appearing on behalf of Sri.T.M.Rasheed, submits that since, pending this lis, the Election Commission has taken a decision, which is evident from their Order No.SEC-568-2019-B3 dated 31.10.2019, to conduct the next phase of elections by convening a new meeting in continuation of the meeting held on 16.10.2019, his client is accepting the same and is giving up all contentions raised in W.P.(C) No.28034 of 2019. The learned Senior Counsel, therefore, prays that