LexV.A. SHABEER versus P.A. NIAMATHULLA
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[2008]6S.C.R.109 V.A. SHABEER A \/. PA. NIAMATHULLA (Civil Appeal No. 2713 of 2008) APRIL 10, 2008 B _..., [P.P. NAOLEKAR AND V.S. SIRPURKAR, JJ.] Election Laws: Kera/a Panchayat Raj Act, 1994 - ss. 40, 41, 4 n - Panchayat election - Challenge to, by defeafi:;_d andidate c - Plea that elected candidate did not subscribe oath before person authorized and officer who accepted nomination paper was not authorized - Held : Not correct - By Notification Secretary of each Block Panchayat was appointed as Assistant Returning Officers to assist Returning Officer for that particular D ). block - Person who subscribed oath and accepted nomination papers was at the relevant time working as Secretary to Block Panchayat and was holding full additional charge of Block Development Officer for block Panchayat- He had all powers, authority and responsibility of Assistant Returning Officer - E Thus, competent to subscribe oath to elected candidate and accept his nomination papers - Order of High Court holding election of elected candidate void, set aside and that of tribunal dismissing the election petition upheld. The State Election Commission appointed the Deputy F ·-'"- Director of Fisheries as the Returning Officer for the Panchayat Election. Smt. P.C. Mary was working as Block Development Officer and she retired from service. Thereafter, Shri O.G. Venugopal, Extension Officer (IRD) was holding additional charge of Block Development G Officer. Shri Venugopal accepted the nomination papers r.it of the appellant and the appellant took oath before him. The appellant was declared elected. The defeated candidate respondent challenged the election on the 109 H 110 SUPREME COURT REPORTS [2008] 6 S.C.R A ground that the appellant did not deliver the nomination paper to the Returning Officer or to the Assistant Returning Officer duly authorized by the Returning Officer who had authority to receive the same; and that the appellant had not made and subscribed the oath or B affirmation before person authorized by State Election Commission and thereby was not qualified for contesting ·< ~ "· election. Election tribunal dismissed the election ' n. However, High Court allowed the appeal and held tion of the appellant as void. Hence, the present c appea. Allowing the appeal, the Court HELD: 1.1 Shri O.G. Venugopal-PW5 was posted in place of Mrs.P.C. Mary, the erstwhile Block Development 0 Officer and a Secretary of the concerned Block Panchayat and that atleast for that period Shri O.G. Venugopal was holding full additional charge of the BOO, Alangad Block Panchayat. Therefore, it is obvious that Shri O.G. Venugopal, who was an Extension Officer during the . E period from 31.8.2005 upto 6.9.2005, was acting as a Block Development Officer and the Secretary to the Block Panchayat for all practical purposes. Merely because Shri O.G. Venugopal was holding additional charge of the BOO, Alangad, it did not mean that he was not holding the full F charge of the post of BOO. [Para 14] [122-G; 123-A, B] 1.2 The notification dated 29.8.2005 appointed "Secretary of each Block Panchayat" as the "Assistant Returning Officer" to assist the Returning Officer for that particular Block. PW 2 was the Returning Officer under G the Notifications by the State Election Commission dated 18th August, 2005. The very look of the notification suggests that the Secretaries of each Block were not empowered, under the said notification, in their name. It was only the incumbent of the office of the Secretary of each Block Panchayat who was empowered to act as the H VA. SHABEER v. P.A. NIAMATHUL.LA 111 .. Assistant Returning Officer. It, therefore, naturally follows A that every incumbent who was working, at the relevant time, as the Secretary of the Block Panchayat was empowered to act as the Assistant Returning Officer. There is no reason to hold that Shri O.G. Venugopal was not working as the Secretary to the Block Panchayat, B ,.. Alangad. The order passed by the District Collector who was also the District Election Officer, specifically provided that Shri O.G. Venugopal w·as to hold full additional charge of BOO. Resultantly he was also the Secretary of the Block Panchayat and was acting as such. Once this position is c clear, then it is obvious that he had all the powers, authority and the responsibilities of an Assistant Returning Officer. Under Section 42(2) of the Kerala
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