JUDGMENT
Jawahar Lal Gupta, C.J.
1. Is the election of the respondents as Municipal Councillors and Panchayat Member vitiated on account of the fact that they had not subscribed to the oath, in the prescribed form, at the time of filing the nomination papers? This is the short question that arises for consideration in these two cases. Learned counsel for the parties have referred to the facts in Original Petition No. 29473 of 2000. These may be briefly noticed.
2. The elections to the Municipal Councils and the Panchayats in the State of Kerala were held in September, 2000. Respondent Nos. 4 to 25 were amongst those elected as Municipal Councillors in Irinjalakkuda Municipality. The petitioner alleges that while filing the nomination papers the elected Councillors had subscribed to an oath which did not conform to the Second Schedule of the Kerala Municipality Act, 1994. The words “will maintain sovereignty and integrity of India” were missing from the
oath. On this basis, it is alleged that respondent Nos. 4 to 25 were not qualified to contest the election. Their nomination papers had been wrongly accepted. Their election cannot be sustained. Thus, the petitioner prays that a writ of quo warranto be issued and they be debarred from continuing to function as Municipal Councillors,
3. A counter affidavit has been filed on behalf of the first respondent viz. the
State Election Commission. In the affidavit it has been averred that there was a bona fide omission. While printing the forms, the amendment as made in the year 1999 was not given effect to. As a result, the candidates subscribed to the oath in the old form. In this form the undertaking to “uphold the sovereignty and integrity of India” was not there. Despite this categorical admission of facts, it has been pleaded that the proper remedy for the petitioner is to approach the Election Tribunal, which is the appropriate forum to decide the matter after recording evidence. It is a technicality which does not go to the root of the matter. Reference has also been made to Article 51-A(c) of the Constitution. On this basis it has been averred that an oath to abide by the Constitution “will impliedly cover an undertaking to uphold the sovereignty and integrity of India”. On these premises the respondent maintains that the Writ Petition should be dismissed.
4. A counter affidavit was also filed by the 6th respondent on behalf of some of the respondents. It has been averred inter alia that the petition is not maintainable. The petitioner does not have any locus standi to challenge the election. The person has to be either a candidate for the election or “an elector within the said constituency.” Since the petitioner does not satisfy this requirement he cannot file the petition under
Article 226 of the Constitution. Still further, relying upon the provisions of Section 163 of the Kerala Municipalities Act, it has been pointed out that an election petition is the appropriate remedy. In this behalf, reference has also been made to Article 243-ZG. It has been pointed out that an election petition has been actually filed before the Munsiff. Some of the respondents have already received notices. Thus, the respondent maintains that the Writ Petition deserves to be dismissed.
5. Learned counsel for the parties have been heard. On behalf of the petitioner it has been contended by Mr. Ranjith Thampan that subscribing to the oath as prescribed in the nomination form is mandatory. The respondents had failed to do so. Thus, they did not full fill the qualification as laid down in Section 85(f) of the Kerala Municipality Act, 1994. It has also been pointed out that under Section 178 ah election can be declared void if “on the date of his election (the) returned candidate was not qualified”. The Counsel has also pointed out that the petitioner cannot avail of the remedy of election petition as prescribed under Section 165 as he was not an elector from the Wards which respondent Nos. 4 to 12 and 14 to 25 represent. Since all of them were elected in one election and lack a common qualification, filing of 22 election petitions would only result in multiplicity of litigation and not promote any public interest.
6. On the other hand, learned counsel for the respondents have contended that an election can be called in question only in conformity with the Statute under which it is held. Since the 1994 Act prescribes a specific remedy, the petitioner is not entitled to resort to the proceedings under Article 226 of the Constitution. It has been further contended that in view of the provisions of Articles 243-ZG(b) and 329 the remedy of a Writ Petition is not available to the petitioner. Reference has also been made to Article51-A to contend that a person who owes allegiance to the Constitution of India shall automatically be bound to uphold the sovereignty and integrity of the country. Thus, the failure to comply with the prescribed proforma is only a technicality, which should not vitiate the entire process of election.
7. The two questions that arise for consideration are:-
a. Were respondent Nos. 4 to 25 qualified to contest the election to the office of Municipal Councillors? b. Is the petition under Article 226 competent in the facts and circumstances of the present case? Regarding (a) 8. First of all, the relevant provisions of the Act and the Rules may be noticed. 9. The conditions of eligibility to contest the election are laid down in Section 85. It inter alia provides that "no person shall be qualified for election as a Councillor of a
Municipality unless he possesses the “following qualifications.” In particular, it has been provided in Clause (f) that he must “make and subscribe before the Returning Officer or any other person authorised by the State Election Commission an oath or affirmation in the form set out in the Second Schedule.” His name must appear in the electoral roll. He should have completed 21 years of age. He should not be disqualified under any other provisions of the Act.
10. Chapter VIII of the Kerala Municipality Act deals with the conduct of elections. Under Section 105, the dates for filing nomination papers, scrutiny thereof, the last day for the withdrawal of candidature, the date of poll, etc. are required to be notified. Section 106 makes it incumbent on the Returning Officer to give a public notice. Section 107 entitles a qualified person to be nominated as a candidate for the election. Section 108 deals with presentation of the nomination papers. It requires the candidate or the proposer to deliver the nomination paper “to the Returning Officer at the place specified in this behalf in the notice issued under Section 106….. in the prescribed form and signed by the
candidate……” Under Clause (4) the Returning Officer is under a duty to “satisfy himself
that the names and electoral roll numbers of the candidate and his proposer” tally with those “entered in the electoral roll”. Under Section 109 a deposit has to be made. The Returning Officer after the receipt of nomination papers has to inform the person concerned “of the date, time and place fixed for the scrutiny of nominations….” A
specific provision in this behalf has been made in Section 110. Under the ensuing provision
the procedure for the scrutiny of nomination papers has been made. Thereupon a list
of the candidates whose nominations have been found to be valid has to be displayed
on the notice board.
11. Another fact, which may be mentioned here is that in exercise of the powers conferred under the Act, the Stale Government has framed rules for the conduct of elections. These are called the Kerala Municipality (Conduct of Election) Rules, 1995. Rule 6 provides as under:-
“6. Nomination of candidates :-
(1) A candidate shall be nominated by means of a nomination paper in Form No. 2 and on
an application in that behalf of an elector in the electoral roll of any ward of concerned
Municipality, the Returning Officer shall provide him Form No. 2 free of cost.
(2) Every candidate shall make and subscribe an oath or affirmation before the Returning
Officer or the person authorised by the State Election Commission in the Form
specified in the First Schedule of the Act.
(3) The Returning Officer shall, immediately on receipt of the nomination paper, number them serially in the order of their presentation and shall note the date and time of its presentation in each nomination paper and shall issue a receipt attached to Form No. 2.”
A perusal of the above provision shows that every candidate has to make and subscribe to an oath in the prescribed form. Under Clause (2) every candidate has to “make and subscribe an oath or affirmation before the Returning Officer……. in the Form specified
in Schedule of the Act.” The Returning Officer has to allot a serial number. The prescribed form is contained in the Schedule. The form as it originally existed provided as under:-
“FORM OF OATH OR AFFIRMATION
I,……………, a candidate for election as a member in Ward No………of the……………………
Municipality do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, and that if elected I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of any office without fear or favour or affection or ill will.”
12. The above form was amended by Act. No. 14 of 1999. An addition was made to the original form. The amended version reads as under:-
SECOND SCHEDULE
FORM OF OATH OR AFFIRMATION
I,……………. a candidate for election as a member in Ward No…………….. of the……………………….
Municipalities, do swear in the name of God/solemnly affirm that 1 will maintain true faith and
allegiance to the Constitution of India as by law established and will uphold the sovereignty
and integrity of India and that if elected I will duly and faithfully and to the best of my ability,
knowledge and judgment perform the duties of my office without fear or favourer affection or
illwill.”
(emphasissupplied)
13. It is in the background of these provisions that the question as posed above has to be considered.
14. Learned counsel for the respondents have contended that the form of the oath is not mandatory. The amended form has been introduced only by an amendment of the statute. So long as the provision has been substantially complied with a candidate cannot be said to be disqualified from contesting the election. Is it so?
15. On a plain examination of the language of the provision in Section 85, it is clear that it lays down the basic minimum conditions of eligibility. A person who does not fulfil any of the requirements cannot contest the election. The candidate who does not subscribe to the oath in the prescribed form is not qualified to contest. The bar is absolute. It does not permit any exception. It does not allow for any relaxation. It does not provide for any departure. Still further, it deserves mention that the new form for the oath was introduced by an amendment of the provision. If the contention as now sought to be raised on the basis of Article 51-A were correct, the Legislature
would not have considered it necessary to make the amendment. The acceptance of the argument would make the amendment totally meaningless. In this situation, it cannot be said that the default is a mere technicality. On the plain language of the provision, the contention that it is merely directory cannot be sustained.
16. It was suggested on behalf of the respondents that the disqualifications have been specifically prescribed in Section 86. Failure to take the oath does not amount to a
disqualification.
17. We have examined the matter. Reference to Section 86 shows that officers or employees in the service of the Government or a local authority etc. are disqualified from contesting the election. Such persons are not even entitled to submit the nomination paper. They cannot even offer themselves for the contest. They cannot be nominated. However, a person who does not suffer from a disqualification as mentioned in Section 86, can submit his nomination paper. But it is liable to be rejected if he is below 21 years of age or if he has not subscribed to the oath/made an affirmation in the prescribed, form. Thus, a person who is not disqualified to contest is rendered ineligible. On a harmonious construction, it appears that the two provisions supplement each other. The legislative mandate is clear. A person who does not fulfill the conditions of eligibility cannot contest the election. A candidate has to fulfill the condition of age. His name must be borne on the electoral roll. He must make and subscribe to the oath. He cannot be a civil servant. And so on.
18. Even judicial precedent supports this view. The matter was considered by their Lordships of the Supreme Court in S.K. Abdul Rehman v. Jagat Ram (AIR 1969 SC 1111). It was inter alia held by their Lordships that “the failure of a person prior to filing the nomination paper to make or subscribe oath or affirmation before the authorised officer as required under Section 51 (a) disqualifies him to be chosen to fill the seat in the Legislature under Section 51(a). The nomination paper of such person is liable to be rejected under Section 47(2)(a) of the J. & K. Representation of the People Act and the mere fact that signed oath forms are filed along with the nomination paper makes no difference.” A perusal of the judgment shows that signing of the oath form separately and attaching it to the nomination paper was pleaded as a defence. It was pointed out that the needful had been done “before the date fixed for scrutiny.” Their Lordships had taken the view that this made no difference. The oath was not made or subscribed to before the Assistant Returning Officer as required by Section 51 (a). A similar view was taken in a subsequent decision in Harjith Singh v. Umarao Singh (AIR 1980 SC 701). Reference can be made to the following observations in paragraph 11:-
” 11. It is not in controversy that it was obligatory under Clause (a) of Article 173 of the Constitution for the appellant to make and subscribe, before a person authorised in that behalf by the Election Commission, an oath or affirmation according to the form set out for the purpose in the 3rd
Schedule and that he could not be qualified to be chosen to fill a seat in the Legislature of a State
without doing so. The importance of that requirement of the Constitution has been reiterated
in Sub-section (2) of Section 36 of the Act for ground No. (a) thereof provides that the Returning Officer shall
reject a nomination paper on the ground that on the date fixed for the scrutiny of nominations
the candidate was, inter alia, not qualified to be chosen to fill the seat in the Legislative Assembly
under Article 173 of the Constitution. The requirement for the making and subscribing the oath or
affirmation was therefore clearly mandatory.”
19. Thus, both on the plain language of the Statute and the binding precedent, it is clear that a person who does not make and subscribe to the oath in the prescribed form in strict conformity with the provisions of the statute is riot entitled to contest the election. Similar is the position in the present case.
20. Learned counsel for the respondents have pointed out that the default was
totally on the part of the State Election Commission. It should not visit the candidate
with any evil consequence. The contention is misconceived. Though it is clear that
the lapse on the part of the Election Commission is serious, yet, under the statute, the
candidate has the responsibility. He has to ensure that the nomination paper is filled
up properly and that the oath, in the prescribed form as laid down in the Schedule, is
made and subscribed to. He alone suffers for the default. No one can take umbrage
behind the fault of the authority and plead that the mistake should be condoned or
overlooked. If such a plea is accepted, every illegal order passed in favour of a party
will have to be upheld. In view of the mandatory language of the Statute the inevitable
consequence has to be borne by the candidate. It is clear that the candidature has to
be cancelled.
21. Mr. Sudhakaran, learned counsel for respondent No, 13 has filed a Civil Miscellaneous Petition No. 6187/2003. Along with this petition a copy of an order dated November, 28, 2002 passed by the Principal Munsiff, has been produced. On the basis of this order it is contended that the election petition filed against the said respondent had been dismissed by the court. It is submitted that in his case there is a positive finding that the oath as subscribed to by him conformed to the statutory provision. Thus, the petition deserves to be dismissed.
22. We have perused the order. The issue framed by the court was whether the nomination of the respondent was wrongly accepted? While dealing with this issue a finding in his favour was recorded However, what deserves mention is that in
the present case the respondent has not even filed an affidavit controverting the allegations made by the petitioner. The averments in paragraphs 8 and 9 were specific. These have not even been disputed. Since the respondent has failed to rebut the allegations, these shall be deemed to have been admitted by him. Another fact, which deserves mention is that the miscellaneous application was filed on January 30, 2003.
Arguments in the case were about to be concluded at that time. The counsel for the petitioner did not have even a chance to check up the factual position with regard to the election petition or the evidence adduced during the trial thereof. In any event, the petitioner was not a party in the election petition. Thus, he is not bound by the decision given by the Munsiff. The finding as recorded by the Munsiff cannot bind the petitioner. Resultantly, the judgment is of no consequence so far as the petitioner is concerned. This is specifically so, because the 13th respondent has not even filed a counter affidavit in the case.
23. Another fact, which deserves mention, is that in the miscellaneous petition a curious prayer has been made that the respondents may be permitted to file a detailed counter affidavit. We find that they had ample opportunity to do so. The Writ Petition has been pending since October 18, 2000. During the period of more than two years the persons whose election was questioned have maintained a studied silence. They have not chosen to file any counter affidavit giving para-wise reply. This was obviously for the reason that the truth had already been revealed by the Election Commission. It is clear that the request for adjournment to file a counter affidavit is only a device to delay the decision at this stage. In any event, the counter affidavit filed on behalf of the official respondent who is an impartial outsider, gives out the truth. It clearly shows that the oath in the form as amended by the 1999 Act had not been subscribed to by any of the candidates. This being the admitted position, we find that no useful purpose would be served by further adjourning the matter. Keeping in view the fact that none of the other respondents has even made a prayer for further opportunity, it appears that the 13th respondent merely wants to delay the decision so as to enjoy the office for some more time. In the circumstances, we do not find any reason to accept the prayer for a further opportunity to file a counter affidavit.
24. It may also be mentioned that the 6th respondent has filed a reply on behalf of certain respondents. However, it has not been even suggested that the oath as subscribed to by the various candidates conformed to the prescribed form. Thus, the first question has to be answered in the negative. It is held that respondent Nos. 4 to 25 were not qualified to contest the election.
Regarding (b) :-
25. Learned counsel for the respondents have contended that in the circumstances of the case an election petition is the appropriate remedy. Reference has been made to the decisions in Pratap Singh v. Shri. Krishna Gupta and Ors. (AIR 1956 SC 140), Aad lar v. Kanghi Ram (1980 SCC (2) 350), Krishna Ballabh Prasad Singh v. Sub Divisional Officer Hilsa cum Returning Officer and Ors. (1985 SCC (4) 194) Narsharan Varma v. State of U.P. and Anr. (1985 SCC (2) 48), S.T. Muthusami v. K. Natarajan and Ors. (1988 SCC (1) 572), KM Sarma v. Devilai and Ors.
(1990 SCC (1) 438) and T.M. Jacob v. C. Poulose and Ors. (1999 SCC (4) 274). Reliance has also been placed on the observations of their Lordships of the Supreme Court in 1985 (4) SCC 722. It has been contended that election cannot be challenged as a whole in one case. In each case the facts have to be proved by filing an election petition. Reference has also been made to the provisions of Article 243-ZG and 329.
26. There is no quarrel with the proposition that an election has to be questioned in accordance with the prescribed procedure. When two candidates contest an election the loser has to normally seek the remedy before the prescribed forum. For this purpose he has to follow the procedure as laid down under the relevant law. The obvious purpose is to ensure that when an election petition is filed the parties prove their contentions by producing the relevant evidence. The Court or the prescribed authority proceeds in accordance with the prescribed procedure. The basic rationale in all these decisions is that the disputed questions of fact cannot normally be settled in proceedings under Article 226 of the Constitution. The counsel for the petitioner has not disputed the rationale of the view taken in the above cases. However, these decisions cannot be read as laying down an absolute bar on the High Court to examine a matter in the exercise of its jurisdiction under Article 226 of the Constitution. The power of the High Court under Article 226 is wide. The Court can examine any alleged violation of a statute. It can issue not only one of the prerogative writs as contemplated under the English jurisprudence but also any direction or order that it may deem fit in the circumstances of a case. Still further, the High Court has the power of judicial review over the action of every authority in the State. The facts having not been disputed by the respondents, we find no ground to limit the power of this Court or to deny the remedy to the petitioner.
27. In the context of the facts of the present case it is clear that the mandatory provisions of the statute have not been observed. At the cost of repetition, it may be mentioned that the private respondents have not even filed their counter affidavits to controvert the averments made in the petition. The factual position has been clearly admitted by the State Election Commission. In this situation, the acceptance of the respondents’ plea would only mean the filing of 22 election petitions. This would only mean an addition of 22 cases before the civil court. It would be an avoidable addition to the burden of the court. It would not promote public interest. It would be an abuse of the process of law.
28. It has been pointed out that a counter affidavit has been filed by respondent No. 6 on behalf of some of the respondents. We have adverted to it in the statement of facts. However, a perusal thereof shows that there is no specific denial of the allegations contained in paragraphs 8 and 9 of the petition by either the respondent on his own behalf or even on behalf of the other respondents. In fact, the factum of making oath was in the personal knowledge of each of the respondents only. No one
was competent to file affidavit on behalf of others. Even if this aspect is ignored, the fact remains that there is no averment to the effect that the oath as subscribed to by the respondents conformed to the prescribed form. In fact, it is the admitted position that the oath as got printed by the Commission did not conform to the prescribed form. The respondents had not sworn to ‘uphold the sovereignty and integrity of India’. The default was not purely technical. The fact that they had subsequently subscribed to the oath in the proper form at the time of their being sworn in as Councillors, is of no consequence. The initial defect is not cured. The position of law has been clearly laid down by their Lordships of the Supreme Court in S.K. Abdul Rehman’s case (supra). This view has been reiterated by their Lordships of the Supreme Court in K.Venkatachalam v. A. Swamickan (AIR 1999 SC 1723). Their Lordships have held as under:-
“Where appellant, was not an elector in electoral roll for a assembly constituency for general
elections and he filed his nomination on affidavit impersonating himself for another person of
same name in the electoral roll, he lacked the basic qualification under Clause (c) of Article 173 of the
Constitution read with Section 5 of the Act, which mandated that a person to be elected from an
Assembly Constituency has to be elector of that constituency. The appellant is certainly
disqualified for being a member of the Legislative Assembly. His election, however, was not
challenged by filing an election petition under Section 81 of the Act. Appellant knows he is disqualified.
Yet he sits and votes as a member of the Legislative Assembly. He is liable to penalty of five
hundred rupees in respect of each day on which he so sits or votes and that penalty is recoverable
as debt due to the State. There has not been any adjudication under the Act and there is no other
provision of the Constitution as to how penalty so incurred by the appellant has to be recovered
as a debt due to the State. Appellant is liable to penalty nevertheless as he knows he is not
qualified for membership of the Legislative Assembly and yet he acts contrary to law. In such
circumstances. High Court can exercise its jurisdiction under Article 226 of the Constitution
declaring that the appellant is not qualified to no member of Legislative Assembly from the Assembly Constituency. The appellant is restrained from functioning as member of Legislative
Assembly and the net effect is that appellant ceases to be member of State Legislative
Assembly.”
29. Keeping in view the fact that there is no dispute on facts and that the respondents have continued in office for a fairly long time despite their not fulfilling the qualification, we feel that it would be unjust and unfair to relegate the petitioner to the remedy of an election petition. The reasons are three-fold. Firstly, under the provisions of the Statute, the petitioner can file an election petition only in respect of the ward in which he is an elector. Thus, he will not be able to question the election of respondent Nos. 4 to 12 and 14 to 25. Secondly, the proceedings before the Election Tribunal shall not be efficacious. Thus, as is well known, it would be delayed and in the meantime the respondents shall be able to complete their term. Thirdly, it may also be mentioned that the limitation for filing an election petition has already elapsed. The
petitioner cannot be blamed for the delay as the petitioner has remained pending for a period of more than two years. Taking the totality of the circumstances into consideration, we are satisfied that it would be unjust now to relegate the petitioner to the remedy of an election petition.
30. Learned counsel for the respondents rely upon the mandate in Article 243ZG. We have considered this aspect. It is true that the provision provides for challenge to an election through an election petition. Can it operate as a bar even in a case where the citizen is not entitled to file an election petition? We think not. In any case, it may be mentioned that the petitioner has also prayed for the ouster of the respondents from the office of Councillors by the issue of a writ of Quo Warranto. The provision in Article 243ZG is not an embargo on the power of the High Court to issue a prerogative writ or direction.
31. In this context, it would be apt to remember that the scope and ambit of a writ. of Quo Warranto has been considered by Courts. In Darley v. R. ((1846) 12 Cl. & F. 520, 8 E.R. 1513, the House of Lords adopted the following opinion delivered by Tindal C.J. who said:
“After the consideration of all the cases and dicta on this subject, the result appears to be, that this proceeding by information in the nature of quo warranto will lie for usurping any office, whether created by charter alone, or by the Crown, with the consent of Parliament, provided the office be of a public nature, and a substantive office, not merely the function or employment of a deputy or servant held at the will and pleasure of others.”
Lord Reading C.J. held this case to establish that;
“Whereas formerly a quo warranto was held to He only where there was an usurpation of a prerogative of the Crown or of a right of franchise, a proceeding by information in the nature of quo warranto has long since been extended beyond that limit and is a remedy available to private persons within the limits stated by Tindal, C.J. and subject always to the discretion of the Court to refuse or grant it.”
The matter has been considered by the Supreme Court in University of Mysore v. Govinda Rao ((1964) 4 SCR 576). The following passage from Halsbury was noticed:
“An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined.”
Thereafter, it was observed by their Lordships as under:
“…………..the procedure of quo warranto confers jurisdiction and authority on the judiciary
to control executive action in the matter of making appointments to public offices against the
relevant statutory provisions. It also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office: in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto isproperly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by (a) usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.”
32. Thus, this Court is competent to enquire as to whether or not a person is qualified to hold an office. A usurper can be ousted. It was not even suggested, and we think rightly, that the office of a Municipal Councillor would not fall within the ambit of a ‘public office’, A person who occupies the office of a Councillor without being qualified is a usurper. He can be ousted by the issue of a writ of quo warranto.
33. It has been pointed out on behalf of the respondents that the view we have taken shall have serious consequences. The default having been committed by the first respondent the consequence shall have to be borne by a large number of candidates who had been elected as Councillors in various Municipal Councils in the State. This contention is misconceived. The election to the other Councils has not been challenged. If subsequently, a challenge is made, it may be open to the candidates to raise the defence of delay. The order in the petitions before the Bench cannot automatically result in setting aside the election to all the Municipal Councils or Panchayats. This is all the more so because none of the candidates from the other Councils is a party in this petition. We are only dealing with the issue as raised by the petitioner against the parties in the cases before us. Secondly, the consequences of an order cannot be a valid defence in a case where the provisions of the Statute have not been complied with by the authority as well as by the candidate. If the consequences are taken as a valid defence, every illegality may have to be ignored. In view of the above, we hold that the contention based on consequences cannot be accepted. Thus, even the second question is answered against the respondents.
34. Counsel for the parties are agreed that the provisions of the Kerala Panchayat Raj Act, 1994 are in pari materia with the provisions of the Kerala Municipality Act, 1994. The connected Writ Petition relates to an election to a Panchayat. The above conclusions are equally applicable to the election held to Ward No. 5 of Vallathole Nagar Panchayat. Consequently, the election of the 5th respondent is also held to be vitiated since he had failed to subscribe to the oath in the form prescribed by the 1999 amendment.
35. Thus, it is not necessary to examine the facts of this case in detail. For the reasons given above, even the 5th respondent cannot be said to be qualified for the office held by him.
36. In view of the above, it is held that:-
a. The requirement for the subscribing to the oath or making the affirmation in the prescribed form as introduced by the amendment in 1999 is mandatory. A person who does not subscribe to the oath or make affirmation in the prescribed form is not qualified to hold the office.
b. Section 85 of the Kerala Municipal Act lays down the condition of eligibility for a candidate. It admits of no relaxation. A person who does not fulfill the condition is not qualified to contest the election. The provisions of Sections 85 and 86 are clearly complementary. A person who suffers from a disqualification under Section 86 cannot file a nomination paper. He cannot offer himself for election. The rest, if they fulfil the qualifications can contest.
c. A person who is not an elector from a ward cannot file an election petition to challenge the election of a Councillor from that ward. Thus, he cannot be relegated to the alternative remedy of an election petition.
d. The powers of the High Court are very wide. In a case where the facts are not in dispute and on the admitted facts a candidate is not qualified to contest the election, it will not be just and fair to leave a party without remedy and to make it suffer in silence.
e. In such a case, the bar as contemplated under Arts. 243ZG and 329 can be overcome by considering a petition under Article 226 and especially for the issue of a writ of quo warranto. f. Respondent Nos. 4 to 25 in O.P. No. 29473 and respondent No. 5 in O.P. No. 31223 of 2000 were not qualified to hold their respective public offices of Municipal Councillors and Member Panchayat. Thus, their election is liable to be set aside.
In view of the above, the Writ Petitions are allowed. The private respondents are directed to vacate their respective offices. However in the circumstances of these cases, the parties are left to bear their own costs.