IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 OP(C).No. 3095 of 2011(O) --------------------------------------- AGAINST THE ORDER DATED 18/08/2011 IN IA.NO. 2591/2011 IN ELE.O.P.NO.14/2010 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER/ RESPONDENT -------------------------------------------- P.A.BASHEER, S/O.ALIYAR,PUTHANAL HOUSE, PEZHAKKAPPILLY KARA,MULAVOOR VILLAGE. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SMT.DHANYA CHANDRAN SRI.M.V.JOSEPH (ALAPPUZHA) RESPONDENT(S): --------------------------- 1. C.K.SIDHIKKE, S/O.KOCHUPILLAI,CHOTTUBHAGATH HOUSE, PEZHAKKAPPILLY KARA,MULAVOOR VILLAGE, PIN- 686 673. 2. C.M.SIDHIKKE, S/O. MUHAMMED, CHIRAPPATTU HOUSE, PEZHAKKAPPILLY KARA, MULAVOOR VILLAGE, PIN- 686 673. R1 BY ADV. SRI.A.C.THOMAS ADHIKARAM THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15/12/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.3095/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE INTERLOCUTORY APPLICATION NO.2591/11 IN ELE.O.P.14/2010 FILED BEFORE THE MUNSIFF COURT, MUVATTUPUZHA. P2 COPY OF THE ORDER DATED 18/8/11 IN I.A.NO.2591/11 IN ELE.O.P.14/2010 OF THE MUNSIFF COURT, MUVATTUPUZHA. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3095 of 2011 --------------------------------------- Dated this 15th day of December, 2011 JUDGMENT First respondent in O.P(Ele).No.14 of 2010 of the Court of learned Munsiff, Muvattupuzha is aggrieved by Ext.P2, order dated 18.08.2011 on Ext.P1, application - I.A.No.2591 of 2011. First respondent challenged election of petitioner to the local authority on various grounds including that 26 votes were illegally and improperly received in favour of petitioner notwithstanding that those votes were void on account of double voting. There is also a contention that Rules 18 and 76 of the Kerala Panchayath Raj (Conduct of Elections) Rules, 1995 (for short, "the Rules”) was violated. On the allegations in the election petition, first respondent claimed a declaration that election of petitioner is void and a further declaration that first respondent is duly elected. Petitioner resisted the election petition on various grounds. The parties went into trial and the Retuning Officer was examined as PW1. At that stage, apart regarding the allegations contained in the election petition and its reply, petitioner wanted to question the Returning Officer with reference to the marked voters list the total number of votes O.P(C).No.3095 of 2011 -: 2 :- illegally received and which void either due to double voting or for other reason. It is the case of petitioner that learned Munsiff did not permit petitioner to put those questions. That was followed by petitioner filing Ext.P1, application to permit petitioner put those questions to the Returning Officer. In Ext.P1, application petitioner prayed that petitioner may be permitted to adduce evidence by marking documents produced by the Returning Officer before the Court and putting questions to him in cross examination to find out the invalid votes if any cast in the election for a proper adjudication of the case. In Ext.P2, order learned Munsiff while dismissing that application held that so far as petitioner has not sought recrimination as provided under Sec.99 of the Kerala Panchayat Raj Act (for short, "the Act”), those question cannot be permitted. 2. It is contended by learned counsel that notwithstanding that no notice of recrimination as provided under Sec.99 of the Act was given, petitioner is entitled to question the Returning Officer as to the total number of invalid votes the Returning Officer had received be it in favour of petitioner or first respondent or anybody else. According to the learned counsel, question of recrimination would arise only after O.P(C).No.3095 of 2011 -: 3 :- the election of petitioner is declared void. Learned counsel has referred me to Secs.99 and 102 of the Act and the decision of this Court in Abdulla Haji Vs. Mohammed (2008(4) KHC 215) and in particular the observations in paragraph 21. 3. Election of petitioner is sought to be declared void under Sec.102(1)(d)(iii) and (iv) of the Act. Under sub clause (d), the result of the election, in so far as it concerns a returned candidate, has to be materially affected (under clause (iii)) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void and under sub clause (iv), by any non compliance with the provisions of this Act or of any rules or orders made thereunder. Sub Sec.(1) of Sec.102 makes it clear that the said provision is subject to sub sec(2) which says that if in the opinion of the Court a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the Court is satisfied that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent; that the candidate and his election agent took all reasonable means for preventing the commission of corrupt O.P(C).No.3095 of 2011 -: 4 :- practice at the election, and that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agent, the Court may decide the election of the returned candidate as not void. 4. Reference can be made to Sec.99 of the Act as well. Sub sec(1) of that provision says that when in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition has been presented calling in question his election. The proviso thereto says that the returned candidate or such other other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of trial, given notice to the Court of his intention to do so and has also given the security and the further security referred to in Secs.115 and 116, respectively. 5. Though, in the election petition first respondent not only sought a declaration of election of petitioner as void but also prayed that the first respondent be declared as duly elected, it is O.P(C).No.3095 of 2011 -: 5 :- not disputed before me that petitioner had not chosen to avail the remedy provided under Sec.99 of the Act by giving notice of recrimination within 14 days from the date of commencement of trial. Therefore the declaration prayed for by the first respondent that he be declared as duly elected cannot be resisted by petitioner on the ground that had the first respondent been duly elected and petitioner or other person had brought a petition to declare that election invalid, on the evidence on record the election of first respondent would have been declared invalid. The proviso to Sec.99 bars petitioner from adducing evidence that had the first respondent been duly elected, his election would have been void on account of any reason including improper or illegal reception of votes which are void, be it on the ground of double voting or for any other reason. 6. Sec.102(1)(d)(iii) and (iv) referred and relied on by the learned counsel do not save the situation since that only concerned the question whether election of petitioner had to be declared void and sub sec.(2) only provided that assuming that otherwise election of petitioner is to be declared void, if the circumstance referred to in sub sec.(2) are in existence the Court may not grant such declaration. That also does not enable O.P(C).No.3095 of 2011 -: 6 :- petitioner to adduce evidence that the first respondent is not entitled to be declared as duly elected. 7. Nor am I inclined to think that decision relied on by the learned counsel takes a different view. There, in paragraph 21 learned Judge has proceeded to consider the scope and amplitude of Sec.102 and the scope of recrimination under Sec.99 of the Act. Learned Judge observed, “only if it is found that election of the returned candidate has been materially affected, by such improper reception or refusal or rejection of vote or improper reception of void votes question of declaring the election of the election petitioner or some other candidate arises, as provided under Sec.103 of the Act. It is only when this aspect is considered, absence of a recrimination petition provided under Sec.99 of the Act is relevant”. I am unable to think that the above observations mean that the need to lodge notice of recrimination arises only after the Court finds that election of petitioner is to be declared invalid. Learned Judge was only referring to the stage at which question of recrimination is to be considered; ie, when on evidence it is found that election of the returned candidate is void and there is a prayer to declare the election petitioner as duly elected, then only importance of recrimination arises. I am in full agreement O.P(C).No.3095 of 2011 -: 7 :- with that observation but I cannot accept the argument of learned counsel that on account of the said observation petitioner is entitled to question the Returning Officer as to the total number of invalid votes allegedly received improperly and illegally be it on account of double voting or any other reason. Now the Court is concerned with the allegation in the election petition that certain number of votes were illegally and improperly received in favour of petitioner and that those votes are void on account of double voting or other reason. As aforesaid, petitioner did not give notice of recrimination to say that had the first respondent been duly elected at the election, his election would have been void for the reason of improper or illegal acceptance of void votes in his favour. I must also bear in mind that trial of an election petition is not a roving enquiry to find whether who all received votes improperly or illegally. The Election Tribunal is concerned with the allegation made in the petition and its counter. The question in the present case is whether election of petitioner is void for the reasons set forth in the election petition and that alone is the scope of the enquiry. There could be no evidence beyond the scope of enquiry. Viewed in that line, it was not necessary to bring in evidence on the O.P(C).No.3095 of 2011 -: 8 :- points sought to be put by petitioner to the Returning Officer, refused by the learned Munsiff and rejected by Ext.P2, order. This original petition is dismissed. (THOMAS P. JOSEPH, JUDGE) Sbna/-