V.A. SHABEERversusP.A. NIAMATHULLA

                                [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
          of the appellant and the appellant took oath before him.
  r.it    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
    Officer and a Secretary of the concerned Block Panchayat
  0
    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
    charge of the post of BOO. [Para 14] [122-G; 123-A, B]
 F
        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
       clear, then it is obvious that he had all the powers,
                                                                     c
       authority and the responsibilities of an Assistant
       Returning Officer. Under Section 42(2) of the Kerala
       Panchayat Raj Act, 1994 under which every Returning
       Officer, subject to the control of the Returning Officer,
       would be competent to perform all or any of the functions D
 ~..
       of the Returning Officer. Thus, Shri O.G. Venugopal was
       competent to perform all or any of the functions of the
       Returning Officer including subscribing oath and/or
       accepting the nomination papers. [Para 15] [123-C, D, E,
       F, G; 124-A]                                                  E
            1.3 The proviso to sub-section (2) of Section 42,
       however, specifically provides that the Assistant
       Returning Officer could not perform any of the functions
       which· relate to the scrutiny of nominations unless the
       Returning Officer is unavoidably prevented from               F
       performing the said function. That, however, would
       depend upon the evidence. In the instant case, this was
       not the situation. [Para 16] [124-A, B, C]
             1.4 If the language and spirit of section 42(2) is
       realized, then there is no question of holding that Shri O.G. G
       Venugopal did not have any authority to act as the
r.4-
       Assistant Returning Officer. [Para 16] [124-D, E]
             1.5 The observations of the High Court are clearly in
       total derogation of the specific language of sections 42(1)   H
                             ,.
    112     SUPREME COURT REPORTS               [2008) 6 S.C.R


A and 42(2) of the Act. Assistant Returning Officers are to
  be appointed by the State Election Commission and not
  by the Returning Officer. The Assistant Returning Officers
  draw their powers directly from the State Election
  Commission. In the instant case, the State Election
8 Commission had empowered all the Secretaries of the
  Block Panchayat as the Assistant Returning Officers.
  [Para 18] [125-A, 8, C]
       1.6 The words in section 43 "any function which he
  is authorized to perform under sub-section 2 of section
C 42" does not mean to suggest that there has to be an
  authorization, much less in writing by the Returning
  Officer in favour of the Assistant Returning Officer. The
  words refer only to the functions which the Assistant
  Returning Officer 'can' perform or is 'capable' of performing
o under sub-section (2) of section 42. Any necessity of
  specific authorization on behalf of the Returning Officer
  in favour of the Assistant Returning Officer is not seen. If
  section 43 of the Act is read as rigidly as the High Court
  has done, then there may be a situation where the proviso
E to s. 42 would itself become otiose. [Para 18] [125-F, G;
  126-A]
       1.7 Under the proviso during the emergent situation
  where the Returning Officer is unavoidably prevented to
  perform the functions of scrutiny of nominations, the
F Assistant Returning Officer can go ahead even with that
  function. If insistence is on any such so-called written
  authorization, the whole proviso would be rendered
  meaningless. This aspect has completely been missed
  by the High Court. [Para 19] [126-A, 8, C, D]
G      1.8 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
H period when the election programme is on, there would
                V.A. SHABEER v. P.A. NIAMATHULLA               113


        be nobody to accept the nomination form and also to A
        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 B
q.-
        could accept the nomination form or subscribe the oath
        during the period from 31.8.2005 to 6.9.2005. Thus, the
        judgment of the High Court is erroneous. [Para 21] [126-
        E, F, G; 127-A]
              1.9 The acceptance of nomination papers of the         c
         appellantand the subscription of oath by Shri Venugopal
         to the appellant was never objected to either by the
         Returning Officer or by the subsequent BOO who took
         the charge of that po~t from PW5 on 6.9.2005. Again all
         these objections were also not raised at the time when D
·~,      the scrutiny of the nomination papers was done. Of
         course that may not be the only reason to throw out the
       • election petition but .that is certainly an additional factor
         to be taken into consideration. Once this position is
         arrived at, there would be no necessity to even· refer to
         the de facto doctrine as. done by the Election Tribunal E
       . because Shri Venugopal was perfectly competent to
         accept the nomination papers as also to subscribe the
         oath. [Paras 22 and 23] [127-A, 8, C, D]
             1.10 The holding of High Court referring that since     F
        Shri Venugopal could not come in the category of a
        Returning Officer, he could not have introduced oath is
        incorrect. [Para 24] [127-0, E]
               1.11 The observation that the District Collector was
         not competent to confer any powers of Returning Officer G
       · or Assistant. Returning Officer to PW5 is not correct in
"4..     view of the fact that for a limited period between 31.S.2005
         to 6'.9.2005, Shri Venugopal was actually acting as the
        ·Secretary to the Block Panchayat, since he was holding
         a full additional charge of the Block Panchayat. His very H
    114      SUPREME COURT REPORTS              [2008] 6 S.C.R.


A appointment to that post would clothe him by the powers
  under the State Election Commission vide notification.
  [Para 25] [127-E, F, G]
          1.12 The submission that there was only Exhibit X-
    8(a) endorsement is made without any basis, rhyme or
8   reason. The question of Exhibit X-8(a) being false
    document was not even raised before the High Court. It
    is 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
C   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 instructions included
    that there has to be a specific authorization of the
    Returning Officer in favour of the Assistant Returning
D   Officer. Firstly this document was never referred to during
    the arguments before this Court 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 this Court by the respondent who chose
E   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 are taken
     into consideration for holding that no such specific
    authorization was ever necessary. Therefore the
F   submission is rejecte.d. [Para 26] [128-C, D, E, F, G]
       1.13 It is 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
 G powers by his holding the full charge of Smt.P.C. Mary.
   The submission that there is any breach of sections 179
   and 180 of the Act is not clarified. Reference to Articles
   243F(a) and 191 (e) of the Constitution of India is wholly
   unnecessary. [Para 27] [129-A, B]
'H
                  V.A. SHABEER v. P.A. NIAMATHULLA              115

~

               1.14 It was not necessary for PW5 to be in the rank of A
          gazetted officer in the State service. The respondent has
          completely misread the notification issued under Section
          29(a) of the Act. [Para 28] [129-E, F]
               Shaik Abdul Rahman v Jagat Ram Aryan AIR 1969 SC
          1111 - referred to.                                          B

                1.15 The submission that by Notification, 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, is a
          complete misreading of the notification. What was
                                                                       c
          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. [Para D
          29J [129-F, G, HJ
                1.16 The submission regarding s. 52 of the Act read
          with Rule 6 of the Kerala Panchayat Raj (Conduct of
          Election) Rules, 1995 is totally irrelevant. The submission
                                                                      E
          in respect of the authorization under Section 43 of the
          Act was that it was apprehended that in the absence of
          such authorization the election machinery will break
          down. Since the Assistant Returning Officer has to act
          under the control and supervision of the Returning Officer,
 :.....   the apprehension is not only unfounded but absurd. The F
          State machinery cannot be disbelieved. [Para 30] [130-A,
          B, C]
               1.17 In view of the scope and the powers. of the
          Assistant Returning Officer, it cannot be accepted that no
                                                                     G
          other person or officer can perform all or any of the
,,..      functions of the Returning Officer of conducting the
          elections. [Para 31J [130-C, DJ
              1.18 The District Election Officer has no authority to
          appoint any person as Assistant Returning Officer without    H
    116       SUPREME COURT REPORTS                    [2008] 6 S.C.R.


A the concurrence of the State Election Commission. That
  may be so. In the instant case, the District Election Officer
  has not appointed Shri Venugopal as Assistant Returning
  Office!r. It is because of Notification that Shri Venugopal
  could ipso facto take the authorization from the State
B Election Commission to act as the Assistant Returning
  Officer. [Para 32] [130-E, F]
         'I .19 The order of the High Court is set aside and the
    Election Tribunal was right in upholding the election and
    dismissing the election petition. [Para 33] [130-G]
c
        CIVIL APPELL.ATE JURISDICTION : Civil Appeal No.
    2713 of 2008.
         From the Judgment and Order dated 18.6.2007 of the High
    Court of Kerala at Ernakulam in M.F.A. No. 11/2007(8)
D
          C.S. Rajam, A. Raghunath for the Appellant.
          Respondent- In - Person.
          The Judgment of the Court was delivered by
E         V.S. SIRPURKAR, J. 1. Leave granted.
          2. This appeal is directed against the judgment of the
    learned Single Judge of the Kerala High Court whereby the
    learned Single Judge allowed the appeal filed against the order
    of the Trial Court and declared the election of the appellant void.
F
        3. The appellant and the respondent were the candidates
  who contested the election from Ward No.2 of Alangad Block
  Panchayat held on 24th September, 2005. The appellant was
  declared elected. The candidate who lost the election
G (respondent herein) challenged the election by way of an Election
  Petition before the Election Tribunal mainly on two grounds. It
  was first contended that the officer who accepted the nomination
  papers of the appellant had no authority to receive the same
  and secondly the appellant had not made or subscribed an oath
H or affirmation before the Returning Officer or any other person
                    V.A. SHABEER v. P.A. NIAMATHULLA                    117
                           [V.S. SIRPURKAR, J]

         authorized by the State Election Commission and, therefore,           A
         he was not qualified to fill a seat.
               4. The Election Petition was opposed on the ground that
         the election petition was not maintainable and that it was filed
         after the expiry of the period of limitation. It was contended that
         the appellant had signed the oath or affirmation according to         B
         the form set out for the purpose in the First Schedule of the
         Kerala Panchayat Raj Act, 1994 (hereinafter referred to as "the
         Act") and that the appellant was fully qualified to contest the
         election. It was also pointed out that the nomination papers were
         filed before the Assistant Returning Officer who was fully            c
         competent to verify the nomination papers and receive the same.
         Hence there was absolutely no ground to declare the election
         as void.
               5. The Election Petitioner (respondent herein) examined
                                                                              D
         five witness and marked 11 documents while the appellant did
~-       not adduce any evidence. The Election Tribunal (2nd Additional
         District Judge, Ernakulam) came to the conclusion that the oath
         or affirmation of the appellant was made before the Assistant
         Returning Officer and it did not matter that the Assistant Returning
         Officer had no authority. The Trial Court applying "de-facto E
         doctrine" held that oath was before an appropriate authority and
         as per the Rules. The Election Tribunal also held that the officer
         who received the nomination papers was holding the charge of
         Block Development Officer and was an Assistant Returning
         Officer and as such he was competent to receive the same. F
         The Election Petition was, therefore, dismissed. The appeal
         was filed against this order before the High Court on two
         grounds, they being:
              i)     The appellant had not made and subscribed the oath
                                                                               G
                     or affirmation before a person authorized by the State
                     Election Commission and thereby he was not
,.....               qualified for being chosen to fill the seat in the
                     Panchayat.
              ii)   The appellant had not delivered the nomination             H
    118       SUPREME COURT REPORTS                    [2008] 6 S.C.R.


A              papers to the Returning Officer or to the Assistant
               Returning Officer duly authorized by the Returning
               Officer who had authority to receive the same.

        6. The High Court came to the conclusion that on both the
    counts the election was void. The elected candidate, the
B   appellant herein now comes before us by way of the present
    appeal.

          7. Shri C.S. Raja, Senior Advocate, appearing on behalf
  of the appellant, contends before us that the High Court has
c committed a grave error in holding that the appellant had not
  made and subscribed the oath or affirmation before the Returning
  Officer or any other person authorized by State Election
  Commission and thereby he was not qualified to be chosen to
  fill a seat in the Panchayat. Learned counsel also urged that the
D High Court was in grave error in holding that the officer before
  whom the nomination papers were tendered by the appellant
  had no authority to receive the same.             ·                      . ..i

       8. As against this, the respondent who appeared in person,
  supported the order of the High Court relying on the various
E provisions of the Act. It will be, therefore, for us to consider as to
  whether the High Court was right in declaring the election of the
  appellant as void.
        9. It is an admitted fact that the State Election Commission
  had appointed Deputy Director of Fisheries (Zonal) as the
F Returning Officer for this election. It is also an admitted position
  that one Smt.P.C. Mary was working as Block Development
  Officer, Alangad and she retired from service on the Afternoon
  of 31.8.2005 There is an order on record (vide Exhibit X-9)
  passed by District Collector bearing No.RD.299/2005 dated
G 31.8.2005 to the following effect:
          "Smt.P.C. Mary, Block Development Officer, Alangad
          retired from service on the A.N. of 31.8.2005. She is
          relieved of her duties as Block Development Officer on
          the A.N. of 31.8.2005. Shri O.G. Venugopal, Extension
H
           V.A. SHABEER v. PA NIAMATHULLA                       119
                  [V.S. SIRPURKAR, J.)

     Officer (IRD) will hold full additional charge of the BDO,        A
     Alangad till further orders."
     Thus it was Shri O.G. Venugopal who was holding the
charge for Mrs.P.C. Mary. It was this Mr.O.G. Venugopal who
was holding the additional charge of Block Development Officer,
had accepted the nomination of the appellant and it was before         8
him alone that the appellant had taken the oath. The High Court
has found fault with both the aspects.
      10. At this juncture it will be proper to see a few provisions
of the Act on which the parties rely. Section 29 of the Act provides   c
for the qualifications for Membership of a Panchayat. Section
29(e) is as under:
     "29. Qualifications for membership of a Panchayat -
     A person shall not be qualified for chosen to fill a seat in
     a Panchayat at any level unless:                                  D
     (a)       xxx      xxx
     (b)       )()()(   )()()(
     (c)       )()()(   )()()(
                                                                       E
     (d)       )()()(   )()()(


     (e) he makes and subscribes before the returning officer
     or any other person authorized by the State Election
     Commission an oath or affirmation according to the form
     set out for the purpose in the first schedule."                   F
     Sections 40, 41, 42, 43 as are relevant for our purpose
read as under:
     "40. General duties of district election officer-Subject
     to the superintendence, direction and control of the State G
     Election Commission, the district election officer, shall
     coordinate and supervise all work, in the district in
     connection with the conduct of all elections to the
     Panchayats in the district.
                                                                H
    120       SUPREME COURT REPORIS                    [2008] 6 S.C.R.


A         41. Returning Officers - For every Panchayat, for every
          election to fill a seat or seats in the Panchayat, the State
          Election Commission shall, in consultation with the
          Government, designate or nominate one or more returning
          officer who shall be an officer of the Government or of a
B         local self Government Institutions.
          Provided that nothing in this section shall prevent the State
          Election Commission from designating or nominating the
          same person to be the returning officer for more than one
          Panchayats lying adjacent.
c
          42. Assistant Returning Officers - (1) The State Election
          Commission may appoint one or more persons as
          assistant returning officers to assist any returning officer
          in the performance of his functions.
D         (2) Every assistant returning officer shall, subject to the
          control of the returning officer, be competent to perform all
                                                                           . ..(_
          or any of the functions of the returning officer.
           Provided that no assistant returning officer shall perform
          any of the functions of the returning officer which relates to
E         the scrutiny of nominations unless the returning officer is
          unavoidably prevented from performing the' said function.
          43. Returning officer to include assistant returning
          officers performing the functions of the returning
F         officer - References in this Act to the returning officer
          shall, unless the context otherwise requires, be deemed
          to include an assistant returning officer performing any
          function which he is authorized to perform under sub-
          section (2) of Section 42."
G       The contention of the Election Petitioner (respondent
  herein) was that it was Smt.P.C. Mary alone who was authorized
  to accept the nomination papers and also to subscribe the oath
  to the appellant and since she had superannuated on 31.8.2005,
  and was replaced by Shri O.G. Venugopal, Extension Officer,
H IRD and since Shri O.G. Venugopal was not authorized
                VA SHABEER v. P.A. NIAMATHULLA                      121
                     [VS. SIRPURKAR, J.]

       specifically by the State Election Commission or the Returning A
       Officer either to subscribe the oath or to accept the nomination
       papers, the appellant in effect had not taken oath before a
       properly authorized officer nor had he tendered his nomination
       papers before a properly authorized officer.
              11. Admittedly, Shri O.G. Venugopal was holding a full B
'T      additional charge as per the order of the Collector from
        31.8.2008 upto 6.9.2005 when Smt. M.K. Padmavaty took
        charge in the forenoon. The High Court seems to have accepted
        the contention that since Shri Venugopal was not specifically
        authorized by the State Election Commission, or even by            c
        Returning Officer, he had no authority to either accept the
        nomination papers or subscribe oath to the candidates who
        were tendering the nomination papers. It cannot be disputed
        that every candidate has to subscribe an oath before the
        Returning Officer or any other person authorized by the State D
      . Election Commission. It has been held by the High Court that
,._     Smt.P.C. Mary was appointed as an Assistant Returning Officer
        by the State Election Commission and not by the District
        Collector. While she was a Block Development Officer, Shri O.G.
        Venugopal (PW5) was not even a Block Development Officer, E
      , he was merely discharging the functions of Block Development
        Officer as a stop gap arrangement by virtue of an order of District
        Collector. The High Cou·rt also held that the State Election
        Commission has not passed any order designating Shri
        Venugopal (PW5) as the Assistant Returning Officer. It was on F
        this ground that the High Court found that Shri Venugopal did
1-
        not have a proper authorization.
             12. The High Court has dealt with Sections 39 to 43 of the
       Act and ultimately held that the combined reading of Sections
       42 and 43 of the Act would make it clear that a Returning Officer   G
       can authorize the Assistant Returning Officer to perform all or
       any of the functions of the Returning Officer except the function
~      of Returning Officer which relates to the scrutiny of nomination.
       The High Court further held that there was no material before
       the court to hold that Sairabhanu (PW2) who was the Returning       H
    122       SUPREME COURT REPORTS                   [2008] 6 S.C.R.


A Officer had authorized Shri O.G. Venugopal to discharge the            ....
  function of Returning Officer. The High Court held that only other
  evidence relied on by the respondent (appellant herein) was
  Exhibit X-8, a notification dated 29.8.2005 also could not
  empower Shri O.G. Venugopal to act as it could not be said as
B an authorized by the Returning Officer.
          13. Learned counsel for the appellant invited our attention
    to the notification dated 29.8.2005 issued by the State Election
    Commission. The notification which is Exhibit X-8 before the
    Election Tribunal, reads as under:
c
          "In exercise of the powers conferred under sub-section (1)
          of Section 42 of the Kerala Panchayat Raj Act, 1994 (Act
          13 of 1994), the State Election Commission hereby
          appoints the Secretary of each block panchayat as the
          Assistant Returning Officer to assist the Returning Officers
D
          notified in Notification No.192/2005/SEC dated 181h
          August, 2005 and 191/2005/SEC dated 18.8.2005 of the
          State Election Commission."
        Learned counsel also pointed out before us and it was not
E contradicted   that the District Collector was designated by the
  State Election Commission as the District Election Officer. It
  will be seen from Section 40 that subject to superintendence,
  direction and control of the State Election Commission, the
  District Election Officer is duty bound to coordinate and
F supervise all the work in the whole District in connection with
  the conduct of all elections to the Panchayat in the District.
                                                                         ~
  Therefore, it is obvious that the Collector, Ernakulam, who was
  appointed as a District Election Officer was to coordinate and
  supervise all work.
G     14. It is also an admitted position that Shri O.G. Venugopal
  (PW5) was posted in place of Mrs.P.C. Mary. the erstwhile Block
  Development 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
H Panchayat. It is, therefore, obvious that Shri O.G. Venugopal,
                  V.A. SHABEER v. P.A. NIAMATHULLA                    123
                         [V.S. SIRPURKAR, J.]
~       who was an Extension Officer during the period from 31.8.2005 A
        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 charge of the post of BOO. It was, therefore, B
-r-
        obvious that he was, during that period, working as a Secretary
        of the Block Panchayat. This position could not be and cannot
        be contradicted. Now, revereting back to the aforementioned
        notification dated 29.8.2005, it is obvious that the said
        notification appointed "Secretary of each Block Panchayat" as       c
        the "Assistant Returning Officer" to assist the Returning Officer
        for that particular Block.
                15. There is also no dispute that Sairabanu (PW2) was
         the Returning Officer under the notifications by the State Election
         Commission dated 181h August, 2005. Once this position is clear, D
       • the very look of the notification suggests that the Secretaries of
),,.
         each Block were not empowered, under the said notification, in
         their name. ltwas only the incumbent of the office of the Secretary
         of each Block Panchayat who was empowered to act as the
         Assistant Returning Officer. It, therefore, naturally follows that E
         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, Alangad. The order, quoted by us, passed by F
+
         the District Collector who was also the District Election Officer,
         specifically provided that Shri O.G. Venugopal was 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 clear, then it is obvious that he had all the powers,
                                                                             G
         authority and the responsibilities of an Assistant Returning
         Officer. At this juncture it will be necessary to note the specific
~        provision under Section 42(2) of the Act under which every
         Returning Officer, subject to the control of the Returning Officer,
         would be competent to perform all or any of the functions of the
                                                                             H
    124      SUPREME COURT REPORTS                   [2008] 6 S.C.R.


A   Returning Officer. Thus by necessary logic Shri O.G. Venugopal
    was competent to perform all or any of the functions of the
    Returning Officer including subscribing oath and/or accepting
    the nomination papers.

        16. The proviso to sub-section (2) of Section 42, however,
B specifically provides that the Assistant Returning Officer could
  not perform any of the functions which relate to the scrutiny of
  nominations unless the Returning Officer is unavoidably
  prevented from performing the said function. This proviso would
  mean that in an emergent situation where the Returning Officer
C is not able to function by some unforeseen event as a Returning
  Officer, the Assistant Returning Officer could also go ahead with
  the task of scrutinizing the nominations. That, however, would
  depend upon the evidence. In the present case this was not the
  situation. All that Shri O.G. Venugopal did was to act as the
D Assistant Returning Officer owing to his holding a full charge of
  the post of the Secretary to the Block Panchayat. It is also an
  admitted position and not contradicted before us that every such
  BOO for a Block Panchayat acts also as a Secretary to the
  Block Panchayat. If the language and spirit of Section 42(2) is
E realized, then there is no question of holding that Shri O.G.
  Venugopal did not have any authority to act as the Assistant
  Returning Officer.

        17. In para 17 of its judgment, the High Court though had
  noticed Exhibit X-8, curiously obseNed that such authorization
F has to be given by the Returning Officer. We do not see, in the
  language of Section 42(2) any authorization by the Returning
  Officer for an Assistant Returning Officer to perform any function.
  Section 42(2) is merely an empowering section which declares
  that the Assistant Returning Officer is competent to perform all
G or any of the functions of the Returning Officer. However, his
  functions are subject to the c;ontrol of Returning Officer, meaning
  thereby that he can be prohibited by the Returning Officer to do
  a particular function or his actions would be subject to the rigid
  control of the Returning Officer. However, in order to clothe him
H with the competence to act. he does not require any specific
                  V.A. SHABEER v. P.A. NIAMATHULLA                     125
                         [V.S. SIRPURKAR, J.]

        authorisation from the Returning Officer.                             A
               18. Indeed the observations of the High Court in its
        jud~1ment, more particularly in para 17 are clearly in total
        derogation of the specific language of Sections 42(1) and 42(2)
        of the Act. It is to be noted thatAssistant Returning Officers are
        to be appointed by the State Election Commission and not by           B
        the Returning Officer. The Assistant Returning Officers draw their
        powers directly from the State Election Commission. We have
        already pointed out that the State Election Commission, in the
        present case, had empowered all the Secretaries of the Block
        Panchayat as the Assistant Returning Officers. It is not              c
        necessary that a Returning Officer should be assisted only by
                                                                                  ~
        one Assistant Returning Officer. Therefore, in cases where there
        are more than one person acting as the Secretaries (which is
        unlikely case), all such Assistant Returning Officers could assist
        the Returning Officer. The language of sub-section (1) of Section     D
        42 is more than explicit to so suggest. The High Court demanded
        some evidence to show that the Assistant Returning Officer of
        Ward II, Alangad Block Panchayat was authorized by the
        Returning Officer to discharge the functions of Returning Officer.
        We do not see any such necessity from the language of Section         E
        42 of the Act. The High Court has probably made the
        observations owing to the language of Section 43 of the Act
        which provides that wherever the Returning Officer is referred
        to in the Act, it would be deemed that the reference includes the
,....   Assistant Returning Officer performing any function which he/         F
        she is authorized to perform under sub-section (2) of Section
        42. The words in Section 43 "any function which he is authorized
        to perform under sub-section 2 of Section 42" do not mean to
        suggest that there has to be an authorization, much less in writing
        by the Returning Officer in favour of the Assistant Returning
                                                                              G
        Officer. The words refer only to the functions which the Assistant
...     Returning Officer 'can'perform or is 'capable' of performing under
        sub-section (2) of Section 42. We do not see any necessity of
        specific authorization on behalf of the Returning Officer in favour
        of the Assistant Returning Officer. If we read Section 43 of the
                                                                              H
    126       SUPREME COURT REPORTS                    [2008] 6 S.C.R.
                                                                          ,..
A   Act as rigidly as the High Court has done, then there may be a
    situation where the proviso to Section 42 would itself become
    otiose.

         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
F 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                     127
                    [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
~
    Venugopal (PW5) to the appellant was never objected to either B
    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       E
    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.
                                                                        H
    128       SUPREME COURT REPORTS                   [2008] 6 S.C.R.
                                                                          .,..
A       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
    then expressed in the same paragraph that document Exhibit
D
    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
    instructions included that there has to be a specific authorization
E   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
F   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
    as to how there is any breach of Sections 179 and 180 of the
H
                 V.A. SHABEER v. P.A. NIAMATHULLA                         129
                        [V.S. SIRPURKAR, J.]

        Act. We have already explained that the District Collector had           A
        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             B
        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          D
             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               E
        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                 F
        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. H
    130       SUPREME COURT REPORTS                    [2008] 6 S.C.R.


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
B 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
  Sections 52(1) and Section 55(2)(b) of the Act and it is
D
  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.
E
         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.
G         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/-.
    N.J.                                             Appeal allowed.
H