Paragraph numbers below are the court’s original numbering, recovered from the source text.
19. It will be seen that under the proviso during the emergent situation where the Returning Officer is unavoidably prevented B to perform the functions of scrutiny of nominations, the Assistant ·Returning Officer can go ahead even with that function. Now, if there arises a situation that on the date fixed in the election programme for scrutiny of nominations, the Returning Officer meets with an accident and is not able to communicate anything C to the Assistant Returning Officer. under such emergent situation, the Assistant Returning Officer can and has to go ahead with the task of scrutinizing the nominations because the scrutiny must be held on that particular date as per the election programme. If we insist on any such so-called written D authorization, the whole proviso would be rendered meaningless. This aspect has completely been missed by the High Court.
20. We are, therefore, of the clear opinion that Shri O.G. Venugopal who was, at the relevant time, working as a Secretary to the Block Panchayat and was holding a full additional charge E of the Block Development Officer for Alangad Block Panchayat was quitei competent to subscribe oath to the appellant. He was also quite competent to accept the nomination papers.
21. It is obvious that Shri Venugopal had to accept the nomination papers and subscribe oath on the day that he did introducE~ the oath to the appellant and also accepted his nomination papers due to the absence of the Returning Officer. It is unthinkable that during the period when the election programme is on, there would be nobody to accept the G nomination form and also to introduce the oath to a person. tendering his nomination form. Such situation can never be imagined. There could not be a void during the period when the election programme is on. It is unthinkable that for the Alangad constituency in the absence of returning officer, nobody could H accept the nomination form or subscribe the oath during the V.A. SHABEER v. P.A. NIAMATHULLA [V.S. SIRPURKAR, J.] period from 31.8.2005 to 6.9.2005. This is also one of the A reasons why we are of the opinion that the judgment of the High Court has become erroneous.
22. Last but not the least, the acceptance of nomination papers of the appellant and the subscription of oath by Shri B Venugopal (PW5) to the appellant was never objected to either by the Returning Officer or by the subsequent BOO who took the charge of that post from PW5 on 6.9.2005. Again all these objections were also not raised at the time when the scrutiny of the nomination papers was done. Ofcourse that may not be the only reason to throw out the election petition but that is certainly c an additional factor to be taken into consideration.
23. Once this position is arrived at, there would be no necessity to even refer to the de facto doctrine as has been done by the Election Tribunal because we have considered that D Shri Venugopal (PW5) was perfectly competent to accept the nomination papers as also to subscribe the oath.
24. The High Court in para 18 of its judgment has referred to Exhibit X-2, a notification and has held that since Shri Venugopal (PW5) could not come in the category of a Returning Officer, he could not have introduced oath. The observation is patently incorrect in view of what we have held above relying on Sections 42 and 43.
25. It has also been held that the District Collector was not competent to confer any powers of Returning Officer or Assistant F Returning Officer to PW5. In our opinion this observation is also not correct in view of the fact that for a limited period between 31.8.2005 to 6.9.2005 Shri Venugopal (PW5) was actually acting as the Secretary to the Block Panchayat, since he was holding a full additional charge of the Block Panchayat. His very G appointment to that post would clothe him by the powers under the State Election Commission vide notification Exhibit X-8. The other authorities referred to by the High Court in its judgment are not apposite to the controversy in question. .,..
26. The respondent herein has tendered arguments in writing after the matter was closed. We have gone through the said written note of arguments carefully. In paras 1 and 2 again the same argument is repeated that PW5 did not have a proper authorization from the Returning Officer. An absurd statement 8 has thereafter been made to the following effect: ….. "There was only Exhibit X-8(a) endorsement, which is also disputed as it was only the creation done just before producing it before the court for creating false evidence, of the returning officer which is quoted in para 17 of the c impugned judgment." We are surprised at such a statement being made without any basis, rhyme or reason. This question of Exhibit X-8(a) being false document was not even raised before the High Court. It is D then expressed in the same paragraph that document Exhibit X-7(a) was got proved before the trial court which contained the instructions from the State Election Commission, issued in exercise of powers under Article 243K(1) of the Constitution of India read with Sections 44 and 48A of the Act and that the said E instructions included that there has to be a specific authorization of the Returning Officer in favour of the Assistant Returning Officer. Firstly this document was never referred to during the arguments before us and it is only now, after the case is closed and the judgment reserved that the point is being raised. Further, the said document was never produced before us by the respondent who chose to argue his case in person. Lastly whatever may be the instructions from the State Election Commission, they cannot override the provisions of the Act which we have taken into consideration for holding that no such specific authorization was ever necessary. The contention is, G therefore, rejected.
27. A question has been raised then that the appointment and control of the Secretaries of the Panchayats are governed by Sections 179 and 180 of the Act. It is, however, not clarified H as to how there is any breach of Sections 179 and 180 of the V.A. SHABEER v. P.A. NIAMATHULLA [V.S. SIRPURKAR, J.] Act. We have already explained that the District Collector had empowered PW5, with the full charge of Smt.P.C. Mary. If, Smt.P.C. Mary was acting as the Secretary of the Block Panchayat then automatically PW5 would get all those powers by his holding the full charge of Smt.P.C. Mary. The other contentions raised in paras 4 and 5 of the written arguments have already been considered and they are nothing but the repetition of the earlier arguments. Reference to Articles 243F(a) and 191 (e) of the Constitution of India is wholly unnecessary.
28. In para 5 again the question regarding the oath has been raised. There can be no doubt that taking of the oath is a C sine qua non for a proper candidature. Again an absurd statement is to be found to the following effect: "If so that will hit directly the mandate of Article 243F, 173(a) and 191 (e) of the Constitution of India read with Section 36(2)(a) of the Representation of the People Act, 1951 read with the decision of the Hon'bleApex Court in ShaikAbdul Rahman v. Jagat Ram Aryan [AIR 1969 SC 1111) . . The contentions raised in paras 5(a) and 5(b) on the basis of the reported decision in Shaik Abdul Rahman (supra) are complE;Jtely meaningless. Further contentions raised in para 5(b) are nothing but the repetition of the earlier contentions. It has already been explained by us earlier that it was not necessary for PW5 to be in the rank of gazetted officer in the State service. The respondent has completely misread Exhibit X-2(a) the notification issued under Section 29(a) of the Act.
29. It is suggested in para 5(c) that by Exhibit X-9, the District Collector had provided the full additional charge only of the Block Development Officer, Alangad to PW5 and not that of the Secretary of Block Panchayat, Alangad. This is a complete G misreading of the notification. What was authorized by the said ,,.._ notification was the full charge of Smt.P.C. Mary. Once it is an admitted position that the BDOs were acting as the Secretary, Block Panchayat and more particularly since Smt.P.C. Mary was acting as the Secretary, PW5 would enjoy the same powers. A The contentions raised in para 5(c) has, therefore, to be rejected.
30. The contentions raised in para 5(d) regarding Section 52 of the Act read with Rule 6 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995 is totally irrelevant. Some other contentions have been raised at page 9 of the Note in para 5 which should in fact be para 6. The contentions are again in respect of the authorization under Section 43 of the Act and it is apprehended that in the absence of such authorization the election machinery will break down. We only say that since the Assistant Returning Officer has to act under the control and c supervision of the Returning Officer, the apprehension is not only unfounded but absurd. We are not prepared to disbelieve in the State machinery.
31. In para 6(a) a further question is raised based on D Sections 52(1) and Section 55(2)(b) of the Act and it is suggested that no other person or officer can perform all or any …. of the functions of the Returning Officer of conducting the elections. We have already shown earlier the scope and the powers of the Assistant Returning Officer. The contention has, therefore, to be rejected.
32. Lastly it is suggested that the District Election Officer has no authority to appoint any person as Assistant Returning Officer without the concurrence of the State Election Commission. That may be so. In this case the District Election F Officer has not appointed PWS as Assistant Returning Officer. It is because of Notification Exhibit X-8(a) that PWS could ipso facto take the authorization from the State Election Commission to act as the Assistant Returning Officer. We, therefore, find no merits in the arguments.
33. In view of the above, we allow this appeal, set aside the order of the High Court and hold that the Election Tribunal was right in upholding the election and dismissing the election .lft'" petition. Counsel's fee fixed at Rs.10,000/-. H N.J. Appeal allowed.