IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31837 of 2010(D)
1. MOYAN KOLAKKADAN, S/O.USSAN, AGED 58
... Petitioner
Vs
1. KERALA STATE ELECTION COMMISSION,
... Respondent
2. THE DISTRICT COLLECTOR, KOZHIKODE - 1,
3. RETURNING OFFICER,
4. KUNNAMANGALAM BLOCK PANCHAYATH,
5. MOYIN KOTTAMMAL, S/O.KUTTI HASSAN,
For Petitioner :SRI.K.P.SUDHEER
For Respondent :SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :19/10/2010
O R D E R
T.R.RAMACHANDRAN NAIR,J.
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W.P.(C)No.31837 Of 2010
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DATED THIS THE 19th DAY OF OCTOBER, 2010
J U D G M E N T
The 5th respondent is a candidate contesting in the same
Ward wherein the petitioner is contesting. The petitioner’s
grievance is that in the ballot paper their names have been
shown as Moyan Kolakkadan and Moyan Kottammal,though there
is difference in their residential names. The petitioner is seeking
for a direction to the Returning Officer to publish his name as
Moyan Kolakkadan and that of the 5th respondent as Moyin
Kottammal. It is pointed out that the 5th respondent is mainly
known as Moyin and not Moyan. In support of the above plea,
Exhibit P4 voters list has been produced. Complaining about the
action of the Returning Officer, the petitioner filed a
representation before the District Collector and failing to get any
positive action in the matter, this Writ Petition has been filed.
2. The 1st respondent has filed a statement, as directed
by this Court. It is mainly contended that since the election to
the local bodies is in progress, a Writ Petition under Article 226 of
the Constitution of India cannot be entertained. Reliance is
W.P.(C)No.31837/10 -2-
placed on various decisions of the Apex Court and that of this
Court in N.P.Ponnuswami v. The Returning Officer,
Namakkal Constituency (AIR 1952 SC 64), Mohinder Singh
Gill v. Chief Election Commissioner and others (AIR 1978
SC 851), Anugrah Narain Singh v. State of UP(1996(6) SCC
303), Election Commission of India v. Ashok Kumar and
others (2000 (8) SCC 216), Harnek Singh v. Charanjith
Singh and others (2005 (8) SCC 383 and Kurapati Maria
Das v. Dr.Ambedkar Seva Samajan and others (2009(7)
SCC 387).
3. It is further pointed out in paragraph No.8 that Rule
28(4) of the Kerala Panchayat Raj (Conduct of Election)Rules,
1995 provides that if two or more candidates bear the same
name, they shall be distinguished by the addition of their
occupation or residence or in some other manner. The 5th
respondent submitted an application on 7.10.2010 before the
publication of list of contesting candidates to the Returning
Officer that he is popularly known as Moyan Kottammal and his
name in the ballot paper may be printed as Moyan Kottammal.
Allotment of symbol also was made on the same date after the
W.P.(C)No.31837/10 -3-
time fixed for withdrawal of candidature. On receipt of the
complaint of the petitioner, the District Collector called for a
report from the Returning Officer. Finally it is pointed out that
the election process has reached an advance stage and the date
of polling is on 23.10.2010. The printing of ballot papers are over
and postal ballots have been despatched.
4. The learned counsel for the petitioner submitted that
in the light of Section 52(4) of the Panchayat Raj Act, the
Returning Officer had to verify the electoral roll to find out the
description of the candidate also. It is therefore pointed out that
herein the electoral roll has definitely given the name and the
description of the 5th respondent as Moyin Kottammal instead of
Moyan Kottammal and hence the action is unsupportable.
5. Evidently, the action was taken by the Returning
Officer in the light of the application filed by the 5th respondent.
Rule 28(4) enables the Returning Officer to consider that
application.
6. As rightly pointed out by the learned Standing Counsel
for the Election Commission, at this 11th hour, as the ballot
papers have already been despatched, it may not be proper for
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this Court to interfere with the election process.
7. The learned counsel for the petitioner submitted that
he is prepared to meet the expenses for printing the ballot papers
again. But, still, as any direction will interfere with the progress
of the election and the process of the election and in the light of
the facts pointed out by the learned Standing Counsel for the
Election Commission, I refrain from issuing any such direction as
sought for by the learned counsel for the petitioner.
The Writ Petition is accordingly dismissed without prejudice
to the right of the petitioner to avail of the remedy under the
Statute after the election is over.
T.R.RAMACHANDRAN NAIR, JUDGE.
dsn