DEVI Vs. COMMISSIONER AND SECRETARY TO GOVT

JUDGEMENT

(1.) IN these writ petitions, petitioners were aggrieved by the rejection of the nomination paper by the Returning Officer. Hence, petitioners approached this Court to quash the proceedings rejecting the nomination paper and also the communication of the Director of Elections to the Returning Officers, based on which the Returning Officer rejected the nomination papers. These are evidenced by Exts. Pl and P3.

(2.) WHEN the Original Petition came up for admission, I admitted the Original Petition and directed that the results of the election from Mundery Division and Payam Division in Kannur District shall not be declared until further orders from this Court. In Para. 2 of the said order, I observed as follows: " If the rejection of the nomination paper is illegal, normally, that is a matter to be agitated in an election petition. But under S. 21 of the District Administration Act, providing for determination of validity of election, it is stated that the District Judge can consider the validity of the election only on grounds mentioned in S. 21, viz. whether the candidate is qualified or disqualified under S. 12,14 and 19 of the Act. Unlike the provisions contained in S. 100 of the Representation of People Act or S. 69 of the Cooperative Societies Act, there is no provision for questioning the validity of the election on other grounds. Therefore, if this Court does not interfere, petitioners will have no other remedy. In short, if any of the nomination papers is rejected arbitrarily or illegally, there can be no ground for questioning the same. Therefore, I prima facie find that the Original Petition has to be admitted and considered on its merit. " Subsequently, the Governor of Kerala has issued Kerala District Administration (Amendment) Ordinance, 1991 by which S. 21 of the Kerala District Administration Act has been amended by substituting S. 21 to 21g containing detailed provisions regarding resolution of disputes in relation to election to district councils. The newly introduced S. 21 provides that no election to fill a seat or seats in a district council shall be called in question except by an election petition presented in accordance with the provisions contained in S. 21 A to 21g of the District Administration Act as amended. S. 21a to 21g contains detailed provisions regarding presentation of election petition, grounds for declaration of election to be void, application of provisions of the. Representation of People Act, disposal of election petition and appeal from orders in the election petition. S. 21 C (l) (c) mentions improper rejection of nomination paper as one of the grounds for declaration of the election to be void. In view of this, counsel for the petitioners fairly submitted that alternative remedy is now available to the petitioners under the amended provisions of the District Administration Act. The amended provisions have been given retrospective effect. Sub-section (2) of S. 1 states that the ordinance shall be deemed to have come into force on the 29th day of December, 1990. If the ordinance has come into force on 29-12-1990,1 have to give full effect to the deeming provisions. The law in this regard is stated by the Supreme Court in the decision reported in American Home Products Corporation v. Mac Laboratories Pvt. Ltd. (1986) 1 SCC 465 as follows: " 56. In a celebrated passage Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. v. Finsbury Borough Council said (at page 132): If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. 57. In the State of Bombay v. Pandurang Vinayak Chaphalkar this Court held (at page 778) while approving the above passage of Lord Asquith: " WHEN a statute enacts that something shall be deemed to have done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. " Election to the District Councils, declaration of results of the election, etc. are not fundamental rights or common law rights. Those are rights conferred by the Kerala District Administration Act, 1979, and therefore, they are statutory rights. Provisions for challenging the election on the ground of illegal rejection of nomination papers, etc. are contained in the District Administration Act as amended with retrospective effect On the basis of the deeming provisions, I have to proceed that the amended provisions were there from the 29th of December 1990 onwards. If that be so, admittedly, adequate alternative remedy is available to the petitioners under the Act itself.