IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3538 of 2009(U)
1. KODAMANA SUBRAMANIAN,
... Petitioner
Vs
1. STATE ELECTION COMMISSIONER
... Respondent
2. RETURNING OFFICER, G-16, KADANGODE GRAMA
3. BASHEER.M.S., MEMBER, KADANGODE GRAMA
4. PRESIEENT, KADANGODE GRAMA PANCHAYATH,
5. STATE OF KERALA, REP.BY THE ITS
For Petitioner :SRI.P.C.SASIDHARAN
For Respondent :SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :11/02/2009
O R D E R
S.SIRI JAGAN, J.
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W.P(C).No.3538 of 2009
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Dated this the 11th day of February, 2009
J U D G M E N T
The petitioner was a candidate for election to the post of Vice
President of the Kadangode Grama Panchayat in the election held on
28.1.2009. There are 17 elected members of the Panchayat and all of
them attended the meeting convened for election. In the election
conducted one vote was declared as invalid and as a result, both the
petitioner as well as the 3rd respondent secured equal number of votes,
viz., 8 votes each. Thereafter, the Returning Officer drew lots for
deciding the elected candidate. The petitioner’s name was drawn first.
However, applying Sub Rule 7(c) of the Rule 9 of the Panchayat Raj
Act, the Returning Officer eliminated the petitioner from the contest
and declared the 3rd respondent as elected and an objection was
preferred by the proposer of the petitioner to the Returning Officer.
The The Returning Officer ruled that it is sub rule 7(c) of the Rule 9 of
the Kerala Panchayat Raj (Election of President & Vice President) Rules
(“Rules” for short) which is applicable. The petitioner’s contention is
that what is applicable is sub rule 7(a) of Rule 9 of the Rules and sub
rule 7(c) is applicable only in cases covered by sub rule 7(b). As per
sub rule 7(a), the person whose name is drawn in the lot is entitled to
be declared as elected.
2. I have heard all parties.
w.p.c.3538/09 2
3. Sub rule 7 of Rule 9 of the Rules reads thus:
“9. The manner of recording of votes, conducting of votes
and declaration of result. – (1) …
xxx xxx xxx xxx
(7) After the polling is over, the Returning Officer shall, in the
presence of the members, count the ballot papers, declare as to which
candidate each member has recorded his vote, then count the votes
secured by each candidate and declare the result in the following manner,
namely:-
(a) If there are only two candidates then, the person who has
secured more valid votes shall be declared to have been elected and in
the event of both the candidates securing equal numbers of valid votes,
lots shall be drawn in the meeting and the person whose name is drawn
first shall be declared to have been elected.
(aa) In case where there are more than two contesting
candidates and if one of the candidates has secured more votes than the
aggregate votes secured by all the others candidates together the person
who has got more votes shall be declared as elected.
(b) If there are more than two contesting candidates and in the
first polling no candidate secures more votes than the aggregate votes
secured by all the other candidates together, the candidate, who had
secured the least number of votes shall be eliminated and the voting shall
be continued by eliminating the candidate who secures more votes than
those secured by the remaining candidate or candidates together, as the
case may be, and the candidate who thus secures more vote shall be
declared as elected.
(c) if Two or more candidates secure equal number of votes and
one of them has to be eliminated under clause (b) then the Returning
Officer shall draw lot as to which candidate among the candidates who
had secured equal number of votes is to be eliminated and the person
whose name is first drawn shall be eliminated.”
Obviously sub rule 7(b) applies only when there are more than two
contesting candidates and in first polling no candidate secures more
vote than the aggregate secured by all other candidates together
whereas, sub rule 7(a) relates to a situation where there were only
two candidates and both candidates secure equal number of valid
votes. Therefore, since in this case there were only two candidates,
w.p.c.3538/09 3
clearly sub rule 7(a) is the one applicable and the Returning Officer
has applied sub rule 7(c) wrongly. In the above circumstances, the
petitioner is entitled to succeed in this writ petition. Accordingly, the
election of the 3rd respondent is set aside and the Returning Officer,
viz., 2nd respondent, is directed to complete the election process in
accordance with sub rule 7(a) expeditiously.
Writ petition is disposed of as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge