ABDUL HAMEED Vs. STATE OF KERALA

JUDGEMENT

(1.) THERE are two petitioners in this O. P. They are residents of Keezhattur Panchayat. The controversy raised in this case is regarding elections to be held in the Panchayats on 23-1-1988. The last date for filing the nominations was 28-12-1987. The Deputy Director of Panchayats, malappuram, noticed that mistakes had crept in the voters list of Keezhattur panchayat, by way of inclusion of many names of voters violating the clearly laid down boundaries of wards. This mistake was noticed in Ext. P1, the list published on 9-11-1987. So the Deputy Director of Panchayats brought this to the notice of the Government by communication dated 14-12-1987. By Ext. P3, dated 26-12-1987, the Government directed to rectify the mistakes by inclusion of all names of voters in the wards, to which they correctly belong. This was so done by the District Panchayat Officer, Malappuram by Ext. P2 dated 29-12-1987. Ext. P3 was implemented by Ext. P2. The controversy raised in this op. is that the transposition of voters from wards to wards is a vital matter and as per S. 15 (B) (?) of the Kerala Panchayats Act, this shall not be done after the last date for making nominations for an election to the Panchayat and before the completion of the election. It is said, in this case the last date for filing nomination is 28-12-1987 and the transposition was effected by proceedings dated 29-12-1987, evidenced by Ext. P2. This is illegal in view of s. 15 (B) (3) of the Act. The petitioner prays for the issue of a writ of certiorari to quash Exts. P2 and P3. He also prays for the issue of a writ of mandamus commanding the respondents to conduct the election in the Keezhattur panchayat on the basis of Ext. P1, without giving effect to Ext. P2.

(2.) ON behalf of respondents 1 to 3, a detailed counter affidavit was filed dated 12-1-1988. In substance, the mistake that has crept in Ext. P1 is admitted. It is stated that the rectification ordered as per Ext. P3 and which is effected as per Ext. P2, has only given effect to the correct position in law. By Exts. P3 and P2 the voters in a particular ward have been confined to the topographic limits of that ward and no voter from a different ward 19 allowed to exercise bis vote for electing a candidate from another ward. Even if it is said that there is a technical violation in giving effect to Ext. P3 by Ext. P2 proceedings dated 29-12-1987, any interference with ext. P2 at this stage will cause embarassing and difficult situation to Polling officers, candidates and voters. Any interference with Ext. P2 at this stage, which has the effect of restoring Ext. P1, will create confusion and will result in restoring an illegal or unsustainable position. Ext. P2 and Ext. P3 have only corrected a serious and patent error committed by the officials during the electoral process. The interference by this Court in exercise of the discretionary jurisdiction under Art. 226 of the Constitution of India should not result in the restoration of illegal orders or proceedings. There was delay in rendering Ext. P3 and the consequential proceedings, Ext. P2. In view of the pendency of innumerable O. Ps. in this Court, the divisions and the drawing of the line of the boundaries of various Panchayats could not be effected finally. This court rendered the judgment in the batch of cases only on 2-12-1987. It is thereafter the Government took action under S. 10 (3)A and S. 143 and 144 of the panchayat Act. It is stated that the petitioner is not entitled to any relief. It is also contended that the petitioner has alternate remedies by way of appeal from Exts. P2 and P3 under S. 15 C of the Act. Moreover all these matters could be the subject matter of an election petition and so this Court should be loath to interfere with the election process at this stage, in these proceedings under Art. 226 of the Constitution of India.

(3.) IT should be stated that the parent order, Ext. P3, was passed by the Government earlier, than the last date fixed for filing the nominations, on 26-12-1987, which was well before the last date for filing the nominations. Ext. P2 only gave effect to Ext. P3. So construed, it cannot be said that there is any violation of S. 15-B (3) of the Act. Even assuming that the consequential order rectifying the mistakes in the voters list was rendered only on 29-12-1987, a day later than the last date for filing nominations on 28-12-1987 and so there is a technical violation of S. 15-B (3) of the Act, still the question is whether interference under Art. 226 of the Constitution of india is called for or justified on the tacts of this case?