JUDGMENT

1. This writ petition is filed challenging Exhibit P4 order of the 1st respondent. The learned counsel for the petitioner submits that the petitioner and respondents 4 to 14 are elected members of Kuruva Grama Panchayat in the election held during December, 2020. Out of 22 members, 11 belong to LDF and 11 belong to UDF. On 11-01-2021, election to the seat reserved for women in the Development Standing Committee of the Panchayat was held. Two candidates, the petitioner and the 11th respondent contested. The 2nd respondent was the Returning Officer. The Rule provides for marking of as many priorities as there are candidates as may be elected. It is submitted that the LDF members cast their first preference vote in favour of the petitioner and they did not mark second preference vote. The 8th respondent UDF member also cast his first preference vote in favour of 11th respondent. All other UDF members cast their first, second, third, fourth and fifth preference votes in favour of the 11th respondent. The 2nd respondent found that votes cast by respondents 4 to 7 and 9 to 14 were invalid relying on sub-rule (4) of Rule 8 of the Kerala Panchayat Raj (Standing Committee) Rules, 2000 (hereinafter referred to as the Rules) and since the petitioner got 11 first preference votes and the 11th respondent got only one preference vote, petitioner was declared as elected. Respondents 4 to 14 challenged the order of the 2nd respondent before the 1st respondent and he passed Ext.P4 order dated 16-02-2021 finding that the act of the 2nd respondent invalidating the votes of respondents 4 to 7 and 9 to 14 was unjustifiable and directed the 2nd respondent to convene a meeting of members within ten days from the date of the order and count the votes obtained by the petitioner and the 11th respondent again, treating the votes cast by the respondents 4 & 6 to 14 as valid votes and declare the result following the procedure laid down in Rule 8 of the Rules.

2. The learned counsel for the petitioner submits that a mere perusal of Rule would show that there is power in the returning officer to reject ballot papers. Misinterpreting sub- rule (4) of Rule 8 of the Rules, the 1st respondent has held that the votes cast by respondents 4 to 14 were valid. It is further submitted that the 1st respondent had no jurisdiction to consider the complaint of respondents 4 to 14 and that the impugned order was rendered without jurisdiction.

3.The learned counsel for the petitioner relies on decision of this Court in Beena v. Kerala State Election Commission [2012 (1) KLT 721] and the judgment of this Court in Latha Kumaran and another v. The Returning Officer, Annamanada and others [In W.P.(C).No.35121/2010 dated 22/11/2014] and O.E.Abbas and another v. Director of Panchayats and others [in W.P.(C).No. 29729/2018 dated

4/10/2018].

4.A statement has been placed on record by the 1st respondent.

It is contended therein as follows:-

“3. In the election the members can cast their 1st and 2nd preference votes since there were only two candidates namely writ petitioner Chitra of LDF and Safiya Mullappally, 11th respondent of the UDF. The members supporting the writ petitioner cast 11 first preference in her favour, and they did not mark second preference. The supporters of the 11th respondent cast their 1st to 5th preference votes in favour of 11th respondent. The 8th respondent from the UDF group also had cast a first preference vote to the 11th respondent Safiya Mullappally. The returning officer the 2nd respondent erroneously assumed that the votes cast by respondents 4 to 7 and 9 to 14 are invalid in view of Rule 8(4) of the Kerala Panchyat Raj Standing Committee Rules 2000. Since there cannot be invalidation of the votes except on the grounds stated under Rule 8(4); the Election Commission after treating the votes as valid directed counting again and declaration by the Returning Officer strictly in accordance with Rule 8 of the Kerala Panchyath Raj Standing Committe