Kerala High Court
Indulekha vs Preetha Kumari on 15 March, 2010
Equivalent citations: 2010 A I H C 2601
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 366 of 2007()
1. INDULEKHA, AGED 27 YEARS,
... Petitioner
Vs
1. PREETHA KUMARI, W/O.VIKRAMAN,
... Respondent
2. GEETHA KUMARI, AKHIL BHAVAN,
3. THE RETURNING OFFICER,
For Petitioner :SRI.M.K.CHANDRA MOHANDAS
For Respondent :SRI.JOHN VARGHESE
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :15/03/2010
O R D E R
S.S. SATHEESACHANDRAN, J. "C.R"
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C.R.P.No.366 of 2007
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Dated this the 15th day of March, 2010.
O R D E R
The revision is directed against the concurrent decision rendered by the two courts below setting aside the election of the revision petitioner, the returned candidate from Ward No.8 of Kareepra Panchayat. The election of the revision petitioner was impeached by the 1st respondent herein filing an election petition as O.P.(Ele) No.5/05 before the Munsiff's Court, Kottarakkara on the ground that there was double voting by some of the voters, which were void, and also there were irregularities and malpractices by the polling officer, counting officer and Returning Officer in the counting of votes and declaring the result. Invalid votes were counted as valid votes, and there was illegal and improper C.R.P.No.366 of 2007 :: 2 ::
reception and rejection of postal ballot papers was yet another allegation imputed to impeach the result of the election declaring the revision petitioner as the returned candidate. In the election petition, the petitioner prayed for recounting of votes declaring the election of the returned candidate as void, and declaring her as the elected member from the ward. Challenges against her election were resisted by the revision petitioner/1st respondent in the election petition filing a counter refuting the allegations imputed as to the double voting, improper reception and rejection of postal ballot papers treating invalid votes as valid votes etc. She contended that no objection was raised by the petitioner before the Returning Officer over the counting, and there was, in fact, a recounting at her request and, then only the returned candidate was declared elected as C.R.P.No.366 of 2007 :: 3 ::
having secured the majority of valid votes polled. Another contestant in the election from the ward impleaded as the 2nd respondent in the election petition, remained ex parte. The 3rd respondent, the Returning Officer filed a counter contending that there was no irregularity or malpractice in the election and the counting was done in accordance with the rules.
2. In the election, the revision petitioner had obtained 532 votes and the petitioner in the election petition/1st respondent herein got 531 votes. The 2nd respondent in the election petition got only 42 votes. The revision petitioner having obtained one vote more than the petitioner in the election petition had been declared as the returned candidate.
3. The learned Munsiff, after appreciating the materials produced by both sides, arrived at C.R.P.No.366 of 2007 :: 4 ::
the conclusion that one among the two voters named in the election petition examined as PW.2, who was imputed of casting double votes in more than one constituency including Ward No.8 had cast double votes. The vote tendered by PW.2 in Ward No.8 was treated as void, and recounting of the votes polled was ordered. In such recounting since one among the postal votes was seen containing the signature of the voter, and that being violative of the Rules, that vote was held to be invalid. PW.2 had cast his vote in favour of the revision petitioner. Similarly, the postal vote which was found to be invalid was also seen cast in favour of the revision petitioner. Both these votes being rejected the petitioner in the election petition was found having majority of one vote than the revision petitioner and therefore, setting aside the election of the revision petitioner, she was C.R.P.No.366 of 2007 :: 5 ::
declared as elected from Ward No.8 of Kareepra Panchayat. The revision petitioner challenged the order preferring an appeal as A.S.No.53/06. The learned District Judge, afte re-appreciating the materials and hearing the counsel on both sides, concurring with the findings arrived by the court below, dismissed the appeal.
4. I heard the counsel on both sides.
5. The learned counsel for the petitioner, Advocate Sri.M.K.Chandramohan Das, assailed the order of the learned Munsiff and also the judgment of the learned District Judge in appeal, contending that both the courts have erred in concluding that PW.2 had cast double voting in more than one constituency on the basis of a comparison of his signatures in the counterfoils of the ballot papers in the two constituencies with his admitted signatures. Canvassing support from a number of C.R.P.No.366 of 2007 :: 6 ::
authorities rendered by this court and also by the Apex Court, the learned counsel submitted that the court is not an expert in comparing writings and signatures and that being so, whenever such a disputed question require to be examined, and a finding called for, it should seek the assistance of an expert having expertise in comparing handwriting and signatures. Since the court lacked expertise in the field of comparing writings and signatures, any opinion expressed by the court on mere comparison of the signatures cannot be given any merit and the opinion formed by the learned Munsiff, on comparison of the counterfoils with the admitted signatures of PW.2 to conclude that he had cast double voting in more than one constituency, which was confirmed by the learned District Judge in appeal, according to the learned counsel, is erroneous and unsustainable C.R.P.No.366 of 2007 :: 7 ::
under law. Learned counsel, therefore, urged for setting aside the order/judgment of both the courts below and remitting the case for fresh consideration with a direction to seek the assistance of an expert by sending over the disputed counterfoils to him with the admitted signatures of PW.2 to enter a conclusive opinion whether PW.2 had, in fact, cast votes in more than one constituency to consider the vote polled by him was valid or void. Resisting and countering the challenges raised as above, the learned counsel for the petitioner in the election petition/1st respondent Advocate Sri.John Varghese contended that there is no infirmity, leave alone jurisdictional infirmity in the concurrent findings entered by the two inferior courts that two votes polled in favour of the revision petitioner/the returned candidate was void and excluding such C.R.P.No.366 of 2007 :: 8 ::
votes, the 1st respondent has secured majority by one vote. In such circumstances, it is submitted by the counsel, exercise of revisional jurisdiction of this court is uncalled for. The learned counsel placing reliance on some judicial pronouncements rendered by the Apex Court, contended that the court is fully empowered to compare the disputed handwritings with admitted writings to enter a finding on the authorship of the writing, and for which no expert's opinion need be insisted upon. In the present case, the learned Munsiff, after comparison of the counterfoils with the admitted handwritings and appreciating the evidence of PW.2 has concluded that he had, in fact, voted in two constituencies including Ward No.8 of Kareepra Panchayat and that finding of fact approved by the District Judge in appeal, after re-appreciation of the evidence, is conclusive and final and it may C.R.P.No.366 of 2007 :: 9 ::
not be disturbed in revision is the submission of the counsel. One of the postal ballots on recounting was found to be invalid as it was seen subscribed with the signature of the elector, and excluding that vote, which was cast in favour of the returned candidate, and also that of PW.2, which too was cast in his favour, it was found that she had secured only one vote less than the petitioner in the election petition. Setting aside her election, in such circumstances, declaring the petitioner in the election petition as the returned candidate as concurrently held by both the courts, in the given facts of the case, deserve only to be upheld by dismissing the revision, is the submission of the counsel.
6. I have considered the rival submissions made by the counsel with reference to the order passed by the learned Munsiff and also the judgment C.R.P.No.366 of 2007 :: 10 ::
rendered by the District Judge confirming that order in appeal. First of all the question canvassed as to the competency of the courts to compare the disputed writings and signatures and to express an opinion thereof on comparison with the admitted writings and signatures without the assistance of an expert, over which both sides have presented divergent and conflicting versions relying on the judicial pronouncements in support of their respective case is not of much significance. There is no need to examine which among the rival view is acceptable as there is a binding decision by the apex court indicating that the dispute is no longer res integra, but it has been settled. The Apex Court in Neelalohithadasan Nadar v. George Mascrene and others {1994 (2) Suppl. SCC 619} has held that when larger public interest has to be served by expeditious disposal C.R.P.No.366 of 2007 :: 11 ::
of election petition, it is open to the court to compare the admitted signatures of the voters with the disputed counterfoils or documents. True, there is a note of caution in that judicial pronouncement that the court should be slower in adopting that course. So much so, at least in the case of disputes over writings and signatures in the counterfoils or documents relating to an election proceeding, the empowerment of the court to compare the disputed writings and signatures cannot be doubted at all. But whether the court has to do such exercise, without seeking the assistance of an expert depends upon the facts of each case. The above judgment having been rendered by a three judges bench of the Apex Court, the binding force of that decision over and above the pronouncement made by benches of lesser number of Judges need not at all be stated. Suffice to state C.R.P.No.366 of 2007 :: 12 ::
that an Election Tribunal, a court trying an election petition, is fully competent to compare the admitted signatures of the voters with the disputed counterfoils or documents, but it should be slower in adopting that course. Whether that course has to be adopted or not depends upon the materials produced, and the court trying the election petition has to exercise its discretion judicially in proceeding with the exercise of comparing the admitted signatures of the voters with the disputed counterfoils or documents. The challenge raised in the revision by the learned counsel for the returned candidate, the revision petitioner, that the court cannot compare the counterfoils of the voter with the admitted signatures and it has to seek the assistance of an expert, if at all the writings or signatures are disputed, in the light of the binding judicial C.R.P.No.366 of 2007 :: 13 ::
pronouncement as referred to above has no merit at all. That line of attack pressed into service to assail the concurrent decision of both the courts is meritless.
7. The finding arrived by the learned Munsiff, which has been approved by the District Judge as well, after comparison of the signatures in the counterfoils and voters list of PW.2 in the two wards that he had cast double votes and the vote cast by him in Ward No.8 was in favour of the revision petitioner/returned candidate is unassailable. Though PW.2 had disputed the imputation made that he had cast double votes after scrutiny of the materials and comparison of his signatures in the counterfoils and voters' list and appreciating his evidence with that of the Returning Officer, the learned Munsiff has reached the conclusion that he had, in fact, cast double C.R.P.No.366 of 2007 :: 14 ::
votes. The District Judge, after re-appreciating the evidence has confirmed that finding. That concurrent finding of fact is not liable to be interfered with in revision.
8. In the election petition, the petitioner had raised some allegations that there were irregularities in the counting imputing lapses on the Returning Officer. The tables were not arranged properly in the counting hall, bundles of votes were made improperly, there was illegal reception and rejection of postal ballot papers etc. formed part of such allegations. The learned Munsiff, it is seen, after entering a finding that PW.2, one among the two voters, who had been imputed of double voting, had, in fact, cast double votes in more than one constituency including Ward No.8 Kareepra Panchayat, considered the question of recounting which was raised as one among the points C.R.P.No.366 of 2007 :: 15 ::
for adjudication in the petition. A recounting was ordered holding that a case has been made out for doing so. In the recounting one postal vote was found to have been signed by the elector, but it had been treated as a valid vote. A postal vote containing the signature of the elector infringed the election Rules. The learned Munsiff in the recounting rejected that postal vote as invalid. That postal vote had been cast in favour of the returned candidate. Ballot paper of PW.2 in recounting showed that he had cast his vote in favour of the revision petitioner/returned candidate. Excluding that postal vote and also the vote cast by PW.2, both seen cast in favour of the returned candidate, the total votes polled in her favour was less than one vote from that of the petitioner in the election petition. It was in that backdrop, the election of the revision C.R.P.No.366 of 2007 :: 16 ::
petitioner/returned candidate was set aside and the petitioner in the election petition declared as elected from Ward No.8 of Kareepra Panchayat.
9. Both the courts below, the learned Munsiff and also the District Judge in appeal have taken note of various decisions rendered by the Apex Court in the matter of recounting of votes. But strangely enough, the allegations raised in the petition, nor the evidence let in, were appreciated in the proper perspective by both the courts to consider whether a case for recounting of the votes was made out in the present case. Other than some wild allegations and without specific particulars, the petitioner in the election petition had set up a case for recounting as the main relief in the petition. Other than stating that there was illegal reception and rejection of postal ballot papers, no specific allegation was raised by the C.R.P.No.366 of 2007 :: 17 ::
petitioner with reference to any postal ballot cast by a voter. The petitioner had moved before the Returning Officer for recounting after the counting was over when her margin with that of the revision petitioner was found less by 3 votes and on such recounting, the margin was found to be one vote alone was another ground projected that there was irregularity in the counting of votes. The larger question, however remains when she asked for recounting whether she had a case there was any illegal reception or rejection of any postal ballot. Though she claimed of having raised such grounds as well, in her evidence, no material was produced to substantiate that case. The learned Munsiff, it is seen, after taking note of the judicial pronouncements over recounting, has ordered for recounting in the present case since there was a recounting before declaration of the C.R.P.No.366 of 2007 :: 18 ::
result, as the petitioner in the election petition was aggrieved by the counting and that no prejudice would be caused to the returned candidate, revision petitioner, if a recounting is done by the court. Yet another reason which prompted the court in ordering recounting as seen from its order is that in view of the finding already made that PW.2 had cast double voting his vote had to be extracted to find out for whom he had voted, and hence a recounting can be safely ordered in the case. Conclusions so formed by the learned Munsiff to order recounting to say the least is patently erroneous and unsustainable.
10. The Apex Court in Chanda Singh v. Chowdhary Shiv Ram Varma {AIR 1975 SC 403) in the matter of ordering recounting has observed thus:
"A certain amount of stability in the electoral process is essential. If the counting C.R.P.No.366 of 2007 :: 19 ::
of the ballots are interfered with by too frequent and flippant recounts by courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deterious prying, if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a recount."
11. In Baliram Bhalaik v. Jai Behari Lal Khachi {AIR 1975 SC 283}, the Apex Court has laid down the two broad guidelines to be followed for permitting recounting of votes. Recounting of ballot papers can be permitted only where (i) all the material facts on which the allegations of irregularity and illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the making C.R.P.No.366 of 2007 :: 20 ::
of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties."
12. In Bhabhi v. Sree Govind {AIR 1975 SC 2117), the principles enunciated in the earlier decision in Baliram Bhalaik's case {AIR 1975 SC 283} were reiterated. In P.H.Pujar v. Kanthi Rajasekhar Kidiyappa {AIR 2002 SC 1368} stressing upon the essential requirement that a proper foundation has to be laid in the pleadings by setting out material facts and proving it by requisite evidence, the Apex Court has observed that recounting cannot be ordered only because the margin of defeat is meagre.
13. In M.R.Gopalakrishnan v. Thachady Prabhakaran {1995 Supp. (2) SCC 101}, the Apex Court observing that electoral rules provide adequate opportunity to a candidate, his election C.R.P.No.366 of 2007 :: 21 ::
agent and counting agent to have a watch over the counting process before the result is declared and also to raise any objection as to the validity or otherwise of any ballot paper and in case the objection is improperly rejected, the petitioner in the election petition could very well make a concise statement of the material facts relating to the objection in his election petition, has held that 'the secrecy of the vote has to be maintained and a demand of re-count should not ordinarily be granted unless the election petitioner makes out a prima facie case with regard to the errors in the counting and is able to show that the errors are of such magnitude that the result of the election of the returned candidate is materially affected.' In the same decision, it has been held that 'to C.R.P.No.366 of 2007 :: 22 ::
seek an order of recount, the election petitioner has to place material and make out a prima facie case on the threshold itself. No court or tribunal can direct a recount unless it is satisfied from the pleadings and the material facts established thereby by evidence of reliable character that there existed a prima facie case for recount'.
14. Secrecy of the ballot is sacrosanct and it cannot be exposed to deterious prying, and that what will happen if recounting of votes is made as a matter of course, without substantial ground being established for such exercise to examine the result of the election. Reasons adverted to by the learned Munsiff that no prejudice would be caused to the opposite party by such recounting and at any rate in view of the finding made that PW.2 had cast double voting, his ballot paper had to be traced out to determine for C.R.P.No.366 of 2007 :: 23 ::
whom he had cast his vote, which is to be treated as void, are not at all reasons for ordering a recounting. It is not the prejudice that is being caused to the opposite party, the returned candidate that is material or significant in ordering recounting, but larger and wider ramifications may arise as the secrecy of the votes cast by the electors will be open for scrutiny. True the purity of election is also a judging factor over and above the sacrosanctity attached to the ballot papers. But, there must be not only pleading, but proof of the allegations that there was illegality or irregularity in the counting to make out a case for recounting of votes and more than that the court must be prima facie satisfied that such a course is necessary to decide the factual disputes between the parties. The fact that PW.2 had cast double vote and his vote cast in C.R.P.No.366 of 2007 :: 24 ::
Ward No.8 had to be searched out to exclude that vote as void, is no ground for recounting of all the ballot papers polled in the ward. In the case of PW.2 what was required was extracting of his ballot paper alone with reference to his counterfoil, from the bundle of votes, and not the recounting of all the votes. The order passed by the learned Munsiff for recounting of votes for the reason stated which are adverted to above cannot be sustained. where it is seen allegations containing material facts to conclude that there was illegality and irregularity in counting are absent in the petition, other than some general statement, leave alone there was absence of convincing evidence even on such allegations raised in the election petition.
15. The learned District Judge, in appeal, it is seen, has also taken note of the judicial C.R.P.No.366 of 2007 :: 25 ::
pronouncement applicable in ordering recounting. However, the pleadings in the case nor the evidence let in whether a case for recounting had been established was not considered by the District Judge while approving the recounting done by the court below. Obviously, the learned District Judge did not take note that the petitioner has not stated in her petition, what were the grounds raised by her when objections were filed for recounting of votes before the Returning Officer after the counting of votes. No material was placed before the court to prove the objections canvassed for recounting. A recounting on her request was made when the number of votes between her and the returned candidate was of narrow margin and on recounting it was reduced from three to one are innocuous circumstances for a recounting by order of the court. The learned District Judge has C.R.P.No.366 of 2007 :: 26 ::
taken note of the judicial pronouncements that recounting can be ordered only sparingly that too where the election petitioner not only plead and disclose the material fact why recounting is essential, but also substantiate the same by means of reliable evidence showing that there existed a prima facie case for the recounting. More than anything it is seen that the District Judge was swayed and persuaded to accept the result in recounting since such exercise had been carried out. Observations of the Apex Court in T.A.Ahammed Kabeer v. A.A.Azeez {AIR 2003 SC 2271} direct for accepting the result in recounting once it is carried out was the view taken. In the above decision the apex court has not laid down any such proposition but only stated thus: "Once the court has permitted recount within the well settled parameters of exercising jurisdiction in this C.R.P.No.366 of 2007 :: 27 ::
regard, it is the result of the recount which has to be given effect to: (emphasis supplied). So the primary question is whether the essential ingredients have been established to exercise the jurisdiction to order recounting and not the result of recounting done by an irregular exercise of jurisdiction.
16. Secrecy of the ballots is sacrosanct and, therefore, a recounting is permissible only upon a clear case where the ground for such a course is fully alleged and pleaded by materials. However, other than holding that sufficient reasons have been stated by the learned Munsiff for ordering recounting, the learned District Judge has not gone into the question whether a prima facie case has been made out by the election petitioner to have a recounting of the votes in the present case. The reasons stated by the learned Munsiff C.R.P.No.366 of 2007 :: 28 ::
for recounting cannot be considered proper and at any rate they are not sufficient to scrutinise the ballots, the sacrosanctity of which, in the absence of justifiable circumstances, has to be preserved and not to be trifled with. Extraction of the vote of PW.2 who had cast double vote from the ballot box is totally different from ordering a recounting of the votes polled in the election. That was one among the reasons which persuaded the learned Munsiff to order recounting. No prejudice would be caused to the opposite party and that a recounting is necessary since the victory margin of the returned candidate and with that of the election petitioner the defeated candidate is slender were the other reasons. Such grounds, needless to say, are totally insufficient to order a recounting. So much so, it has to be concluded that the order of recounting passed by the learned Munsiff in the C.R.P.No.366 of 2007 :: 29 ::
present case cannot be sustained. On such recounting, the learned Munsiff has found one of the postal votes as invalid for the reason that the elector had subscribed his signature therein. A bald allegation without any particulars that there was improper reception and rejection of postal ballots was raised in the petition among other allegations would not render any assistance to the conclusion drawn by the court on recounting that one among the postal ballots was invalid when the recounting ordered itself is found to be improper and illegal. That being so, the finding entered with respect to the postal ballot that it was void for the reason that it contained the signature of the elector cannot at all be approved. Excluding of that postal ballot from among the valid votes polled on the basis of the recounting made cannot be recognised and given effect to. The court has C.R.P.No.366 of 2007 :: 30 ::
conducted a recounting and traced out an invalid vote which was treated as void on recounting cannot be given any significance when the returned candidate was not given any opportunity to meet such a case on that ground in the election petition. The finding entered by the learned Munsiff with respect to one of the postal ballots that it is a void vote on the basis of the recounting done in the given facts of the case cannot be attached any significance to impeach the result of the election rendered in favour of the returned candidate, the revision petitioner. So much so, the total votes polled in his favour can be reduced only by one vote, that of PW.2, whose vote has to be treated as void since he had cast double vote in more than one constituency.
17. Excluding the vote of PW.2 from the votes polled in favour of the returned C.R.P.No.366 of 2007 :: 31 ::
candidate/revision petitioner, it is seen, the revision petitioner and also the petitioner in the election petition/1st respondent, both of them have secured equal votes i.e. 531 votes each. When equal number of votes are obtained by two or more candidates in an election, then the election is to be decided by lots.
18. Section 104 of the Panchayat Raj Act lays down the procedure in case of any equality of votes. It reads thus:
"104. Procedure in case of an equality of votes:-
If during the trial of an election petition it appears that there is an equality of votes between any candidates at the election and that the addition of one vote would entitle any of those candidates to be declared elected, then --
C.R.P.No.366 of 2007
:: 32 ::
(a) any decision made by the returning officer under the provisions of this Act shall, insofar as it determines the questions between those candidates, be effective also for the purpose of the petition; and
(b) insofar as that question is not determined by such a decision the Court shall decide between them by lot and proceed as if the one on whom the lot then falls had received an additional vote."
When a decision of the court is called for, where equality of votes between the candidates at the election is found in the trial of an election petition, the court has to decide between them by lot and proceed as if the one in whose favour the lot falls has received an additional vote. The C.R.P.No.366 of 2007 :: 33 ::
empowerment of the court to take a decision by lots in the event of equality of votes by the candidates in the trial of an election petition is covered by Section 104(b) of the Act. So, in the present case, where it is seen that both the candidates, the election petitioner/1st respondent and also the returned candidate have secured equal number of votes a decision as to who is the winner has to be decided by the court by taking lots and deciding the winner in whose favour the lot falls, treating her of having received an additional vote.
19. Order setting aside the election of the revision petitioner as the returned candidate in the circumstances is only to be confirmed, but for different reasons as stated above. The learned Munsiff is directed to follow the procedure under Section 104(b) of the Act of taking lots to decide as to who among them, the election petitioner or C.R.P.No.366 of 2007 :: 34 ::
revision petitioner, is the returned candidate from Ward No.8 of Kareepra Panchayat. In whose favour the lot falls has to be treated as having obtained an additional vote and, thus, the winner in the election. All other points raised in the election petition, except the procedure for conducting of lots and the decision thereof to be arrived by the learned Munsiff as to who is the elected candidate shall stand concluded by the decision of this court and no further challenge on any such matter will be entertained by any court, once a decision is entered by the learned Munsiff on taking lots. Subject to the above directions, the revision is disposed of directing the parties to appear before the Munsiff's Court, Kottarakkara on 29.03.2010. The learned Munsiff shall complete the procedure for taking lots within one week from the above date and pass orders as to who among the two is the C.R.P.No.366 of 2007 :: 35 ::
returned candidate from Ward No.8 of Kareepra Panchayat.
Civil Revision Petition is disposed of as above.
Sd/-
(S.S. SATHEESACHANDRAN) JUDGE SK/-
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