Kerala High Court
Kuzhipathalil Mathai Yohannan vs Mathew Joseph And Ors. on 30 September, 1997
Equivalent citations: AIR1998KER106, AIR 1998 KERALA 106, (1997) 2 KER LJ 482
ORDER P.V. Narayanan Nambiar, J.
1. The revision petitioner and the respondents are candidates who contested the election held on 25-9-1995 from Ward No. 2 of Vallavoor Grama Panchayat. The petitioner secured 395 votes whereas the first respondent secured 396 votes and so the first respondent was declared elected by the Returning Officer.
2. The election of the first respondent was challenged by the petitioner before the Munsiff's Court, Changanacherry which as per order in Election O.P. No. 1 of 1995 set aside the election of the first respondent. The Munisiff's Court on a perusal of the ballot papers found that the petitioner as well as the first respondent secured equal number of votes, 395 each and so it decided to select one of them on the basis of lots in which the petitioner was lucky to be successful.
3. The order of the Munsiffs Court was challenged by the first respondent by filing an appeal, A.S. (Election No. 52 of 1997 before the District Court, Kottayam which allowed the appeal setting aside the order of trial Court. It is challenging the judgment in (sic) (Election) No. 52 of 1997, the petitioner has approached this Court in revision under Section 115 C.P.C.
4. Counsel appearing on both sides submitted that the only dispute which comes up for consideration in this revision is regarding the validity of ballot paper bearing No. 0928. So, 1 will confine my discussion to that point alone.
5. Ballot paper bearing No. 0928 was declared to be invalid by the Returning Officer on the ground that it was not possible for him to find out in whose favour the voter has exercised his preference. The Courts below perused the ballot paper in question. The trial Court came to the conclusion that the preference exercised by the voter in ballot paper bearing No. 0928 is in favour of the petitioner and that though a red coloured mark is seen against the name of another candidate, the preference is very obvious. The trial Court also found that it is not a case where vote has been cast in favour of two candidates. The trial Court expressed thus :
"..... On a scrutiny of the invalid votes in Ward No. II of Vallavoor Panchayat, it was found that one ballot which contain the mark on the symbol of the petitioner and some red mark on the symbol of another candidate was considered as an invalid vote. The number of the said ballot is 0928. On a scrutiny of the said ballot, it can be seen that there is clear mark, created by the instrument supplied to the voter on the symbol of the petitioner and there was some red mark near the symbol of another candidate and the said red mark was not created using the instrument supplied to the voter. On a scrutiny of the said ballot, it can be ascertained that the intention of the voter was to vote for the petitioner. So ballot No. 0928 which was considered as the invalid vote by the Returning Officer is to be considered as a valid vote in favour of the petitioner."
6. The appellate court had also perused the ballot paper and came to the conclusion that it was not possible to find out which candidate the voter had preferred. The appellate court in paragraph 13 of its judgment observed thus :
"The petitioner has a contention that one of the votes which should have been given credit in his favour was wrongly disallowed by the returning officer. The relevant ballot paper has SI. No. 0928. In this ballot paper, the voting mark with the prescribed stamp is clearly affiled against the name of the petitioner; but the same type of ink is seen spread against the symbol of another candidate by name Vellachira Vijayan (4th counter petitioner) also. The court below has expressed the view that the intention of the voter has to be inferred from the clarity of the mark and that since the mark is clearly affixed against the name of the petitioner, that has to be given credit. It is true that the ink mark seen against the name of the 4th counter petitioner is not specific in so far as the marks in the stamp are not clearly visible; but nevertheless ink mark is seen there also. This may or may not be due to an attempt on the part of the particular voter to mark the vote in his favour. Whatever that be, under Rule 47 (2)(c) and (d) of the K.P.R. (Conduct of Elections) Rules if marks are made against the name of more than one candidate or atleast a doubt is created as to whom the vote is cast, that has to be disqualified......"
7. I had myself perused ballot paper bearing No. 0928. On the election symbol of the petitioner, the voter has exercised a mark with the anti-clock wise Arrow cross rubber seal which was supplied to him to exercise his preference. It is seen that some red ink is spread on the symbol of the 4th respondent. Vellachira Vijayan, but on a perusal of the ballot paper, it is clear that the red ink seen on the symbol of the 4th respondent is not created by the voter in his attempt to mark the preference. No impression of the anticlock wise arrow cross rubber seal is seen on the symbol of the 4th respondent. On a perusal of the ballot paper one can easily be convinced that the preference voter is in favour of the petitioner. Rule 35(2) (sic) of the Kerala Panchayat Raj (Conduct of Elections) Rules 1995 (hereinafter referred to as "the Rules") states that the voter is to vote with the help of the instrument supplied for the purpose, it is not disputed that what was supplied to the voter to exercise his preference is the anticlock wise arrow cross rubber seal. Such an instrument in seen used only once in ballot paper bearing No. 0928. Rule 47 (2)(c) of the Rules stipulates that a ballot paper will not be counted if vote has been exercised in favour of more than one candidate and Rule 47 (2)(d) of the Rules provides that a ballot paper will not be counted if there is doubt regarding the preference exercised by a voter. As already stated, no mark with the anticlock wise arrow cross rubber seal is seen against the name or election symbol of the 4th respondent. The seal is affixed on the election symbol of the petitioner. In such circumstances, it cannot be said that the voter has voted for more than one candidate or that it is not possible to ascertain the preference of the voter. The intention of the voter is very clear that he has exercised his preference in favour of the petitioner. Any mark or writing in the ballot paper will not invalidate the vote. A vote will be invalidated only if it satisfies the requirements of the Rules which speak about invalidation. In the instant case, the ballot paper bearing No. 0928 was declared invalid by the Returning Officer, but the trial court gave reasons for its validation and it was categoric that the intention of the voter was to vote for the petitioner. The trial court held that rejection of the same was improper. The appellate court also held in paragraph 13 of its judgment that what is seen against the election symbol of the petitioner is the mark with the prescribed stamp and what is seen against the symbol of the 4th respondent is "the same type of ink". There is no mark seen against the name or election symbol of the 4th respondent. The appellate court also observed that the ink mark seen against the name of the 4th respondent is not specific in so far as the mark in the stamp is not clearly visible. In the absence of any mark against the name or election symbol of the 4th respondent in the ballot paper, the appellate court was not justified in concluding that it is not possible to ascertain the preference of the voter and that it is a case where the voter has exercised his preference for more than one candidate. By no stretch of imagination, Rule 47 (2)(c) and (d) of the Rules are offended and it is clear that the voter has exercised his preference in favour of the petitioner. The appellate court was, therefore not, justified in reversing the finding of the trial court regarding ballot paper bearing No. 0928. So, the conclusion arrived at by the appellate court in this regard is absolutely illegal and unwarranted. The appellate court should not have chosen to reverse the finding of the trial court on this point.
8. In the decision reported in S. Sivaswami v. V. Malikannan, (1984) 1 SCC 296 : (AIR 1983 SC 1293), it is stated that a ballot paper shall not be rejected as invalid, if it is reasonably possible to gather a definite indication from the marking as to the identity of the candidate in favour of whom the vote had been given. Basing on this principle, I venture to conclude that the decision of the appellate court in regard to ballot paper bearing No. 0928 is not in accordance with law and recognised judicial pronouncements.
9. Counsel for the first respondent very vehemently contended that as there was marking against the symbol of two candidates, the intention of the voter was not clear and so the Returning Officer as well as the appellate court were justified in their conclusions regarding ballot paper bearing No. 0928. I find it difficult to accept this contention. I have already given reasons why ballot paper bearing No. 0928 is to be treated in favour of the petitioner.
10. Counsel for the first respondent also contended that this Court has no jurisdiction to interfere with the judgment of the appellate court invoking its power under Section 115 C.P.C. He argued that the case on hand will not satisfy the conditions prescribed under Section 115 C.P.O. in as much as the appellate court has not exercised jurisdiction not vested in it by law or that the appellate court has failed to exercise jurisdiction so vested. He also pointed out that while exercising jurisdiction, the appellate court did not commit any illegality or material irregularity. The decisions reported in M/s. D.L.F. Housing & Construction Company, Delhi v. S. Singh, (1969) 3 SCC 807 : (AIR 1971 SC 2324); Baldevdas Shivlal v. Filmstan Dis. (India) P. Ltd., (1969) 2 SCC 201 : (AIR 1970 SC 406); Managing Director, Hindustan Aeronautics Ltd. v. Ajit Prasad Tarway, (1972) 3 SCC 195 : (AIR 1973 SC 76); Municipal Corpn. v. Suresh Chandra Jaipuria, (1976) 4 SCC 719 : (AIR 1976 SC 2621) and Manick Chandra Nandy v. Debdas Nandy, AIR 1986 SC 446 were pressed into service by counsel for the first respondent for canvassing his contention that it is not a fit case for interference by a revisional court. But, it must be borne in mind that the appellate court committed a grave error in reversing the well-considered order of the trial court. The trial court had given valid reasons for its conclusion. Illegality has been committed by the appellate court in appreciation of evidence and in interpreting Rule 47 (2)(c) and (d) of the Rules. If this Court does not venture to interfere in the order of the appellate court, it will amount to perpetuate an illegality committed by the appellate court. On the ground of technicality, this Court cannot be prevented from setting right an illegality committed by the appellate court. This appellate Court exceeded its jurisdiction in reversing the order of the trial court. Material irregularity has been committed by the appellate court in its reasoning. In such circumstances, this Court cannot shut its eyes and hold that interference is uncalled for under the limited jurisdiction conferred on it by Section 115 CPC. Administration of justice is the primary duty of the court and technicalities cannot stand in the way of achieving that purpose. Procedural law is enacted only for governing procedure and cannot stand in the way of administration of justice. So, the contention that this Court has no jurisdiction to interfere under Section 115 CPC is rejected.
So, the judgment in A. S. (Election) No. 52 of 1997 is set aside and the order in Election O. P. No. 1 of 1995 is restored. The revision is allowed. The petitioner Kuzhipathalil Mathai Yohannan is declared duly elected from Ward No. 2 of Vellavoor Gram Panchayat.
Order on CMP. No. 2682/97 in C.R.P. No. 1289 of 1997 dismissed.