IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 CRP.No. 628 of 2008() --------------------- JUDGMENT IN ELECTION APPEAL NO.1/2008 OF THE DISTRICT COURT, KOZHIKODE. ORDER IN ELECTION O.P.NO.146/2005 OF THE PRL. MUNSIFF COURT-I, KOZHIKODE. .................... REVN. PETITIONER: APPELLANT/IST DEFENDANT -------------------------------------------- HASSAN SHA POOMAKOTH, AGED 59, S/O.MOOSAA, VALUVIL HOUSE, KARANNUR AMSOM, DESOM, ELATHUR VILLAGE, KOZHIKODE TALUK, P.O.ERANHIKKAL, KOZHIKODE DISTRICT-673303. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN SRI.A.K.SUKUMARAN RESPONDENTS: RESPONDENTS/PLAINTIFF & 2ND DEFENDANT ---------------------------------------------------- 1. K.SUNILKUMAR, AGED 42, S/O.KANARAN, VAYALIL HOUSE, ELATHUR AMSOM DESOM, P.O.ELATHUR, KOZHIKODE TALUK, KOZHIKODE DISTRICT - 673 303. 2. BALAN, AGED 76, S/O.CHATHUKUTTY, "BALAPRABHA", THAIVALAPPIL, ELATHUR AMSOM DESOM, P.O.ELATHUR, KOZHIKODE TALUK, KOZHIKODE DISTRICT - 673 303. ADV. SRI.K.V.SOHAN FOR R1 SRI.M.C.RATNAKARAN FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON 18/09/2009 PASSED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.628 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 18th September, 2009 ORDER The revision is directed against the judgment dated 8.7.2008 in Election Appeal No.1 of 2008 passed by the District Judge, Kozhikode. Petitioner is the returned candidate from ward No.3 of of Elathur Grama Panchayat in the election held on 26.9.2005. The election was challenged by the first respondent, another candidate who contested the election from the same ward, by filing an election petition as Election O.P.No.146 of 2005 before the Principal Munsiff Court-I, Kozhikode on the ground that the result of the election and declaring the petitioner as the returned candidate was vitiated in view of double voting by a number of voters who had cast their votes in favour of the petitioner materially affecting the result of the election. Second respondent, another candidate in the election, was also impleaded as a corespondent in the election petition. Petitioner had won election by a majority of one vote more than the votes secured by the next candidate, the first respondent, the petitioner in the election petition. The learned Munsiff, after trial, allowed the election petition by order dated 28.3.2008 holding that two voters who had cast their votes in favour of the petitioner had exercised double voting in the same ward CRP No.628/08 - 2 - and four other voters who too had cast votes in his favour had cast votes in another ward also. The votes so cast by those voters were found to be void by which the result of the election declaring the petitioner as returned candidate was found to be materially affected and after excluding such votes, setting aside the election of the petitioner, the first respondent, the petitioner in the election petition, was declared as duly elected from ward No.3 of the Elathur Grama Panchayat by a margin of 7 votes under Section 100(c) of the Kerala Panchayat Raj Act, 1994. Petitioner challenged the order of the learned Munsiff before the District Court by filing an appeal as Election Appeal No.1 of 2008. The learned District Judge, after hearing both sides and appreciating the materials produced, concurring with the findings of the learned Munsiff, dismissed the appeal. Impeaching the correctness of the judgment rendered by the learned District Judge in appeal and contending that the decision suffers from serious infirmity, the revision has been filed. 2. The first respondent in his election petition alleged that the two voters whose names and particulars were given as A schedule in the petition had voted twice in booth No.1 and 2 of Ward No.3 of Elathur Grama Panchayat from which the revision petitioner was CRP No.628/08 - 3 - elected as the returned candidate. It was the further case of the petitioner that four other persons, whose names and particulars were given as B schedule in the petition had cast their votes in ward No.3 and also in ward No.4 of the above Grama Panchayat. Eight votes secured by double voting from the above said voters are liable to be treated as void was the case canvassed to impeach the election of the returned candidate. Petitioner, the returned candidate, had refuted the case so advanced impeaching his election. 3. P.W.1 to P.W.20 were examined and A1 to A6 were exhibited by the first respondent (petitioner in the election petition) to substantiate his case. The revision petitioner, the returned candidate, got himself examined as R.W.1. X1 to X23 were exhibited as court exhibits which included the election records relating to the votes cast by the voters named in A and B schedule. The learned Munsiff, after appreciation of the evidence, came to the conclusion that Eranthozhath Mani and Eranthozhath Murali, the two voters named in A schedule having serial Nos. 765 and 767 respectively in X1 ballot papers had cast their votes in booth No.1 of ward No.3, as established by X1, X2(a), X2(b), X3(a) and X3(b). It was also found that the above voters had also cast their votes in booth No.2 of ward CRP No.628/08 - 4 - No.3 as established by X4, X5(a), X5(b), X6(a) and X6(b). So far as the voters named in B schedule also, the learned Munsiff found on the materials produced that Vattakkandi Aravindakshan, Vattakkandi Rajanan and Vattakkandi Ranjith had cast their votes in booth No.2 of ward No.3 as per X4, X5(c), X5(d), X5(e), X6(c), X6(d) and X6(e).It was also found established that Vattakkandi Aravindakshan, Rajanan and Ranjith had also cast their votes in booth No.2 of ward No.4 as proved by X10, X11(a), X11(b), X11(c), X12(a), X12(b) and X12(c). The 4th voter named in B schedule, Puthiyottil Abhilash, it was found had cast his vote in booth No.2 of ward No.3 as proved by X5(f) and X6(f) and also in booth No.1 of ward No.2 as proved by X7, X8(a) and X9(a). The two voters named in A schedule and the four voters named in B schedule, all of them, it was found, had cast double votes, the former set in two booths of the same ward, ward No.3, from which the petitioner was elected as the returned candidate. The other set, the four voters in B schedule had cast votes in two wards,in ward No.3 and ward No.4 of the same Panchayat. In arriving at the above conclusion, it is seen, the court below had taken note of the oral evidence tendered by the petitioner as P.W.6, his witnesses examined which included his booth agents, a ration shop dealer and CRP No.628/08 - 5 - also the registered notices and summons issued to the respective voters from the court which were not responded to, with some of them returned unclaimed and other with the statement that there is no such addressee. In this context, it has to be mentioned that the registered notices and summons were issued to the voters named in A and B schedule in both their addresses shown in the respective voters list of different booths and wards as indicated earlier. In the case of the voters in A schedule, it was also found by the court below that there is a slight difference in their names as shown in the voters list with one showing as Eranthozhath Mani and Eranthozhath Murali in the voters list of booth No.1 and the other as Enthozhath Mani and Enthozhath Murali in the voters list of booth No.2. The learned Munsiff finding that in both the voters list the name of the father of the voters, their house name and also their close relatives shown along with their names are common and identical concluded that both these voters are one and same persons and they had cast double voting in booth No.1 and booth No.2 of ward No.3 of the Panchayat. In the appeal preferred by the petitioner challenging the decision of the learned Munsiff setting aside his election and declaring the first respondent as duly elected, the learned District Judge, after CRP No.628/08 - 6 - reappreciation of the evidence and meticulous scrutiny of the materials produced, concurred with the conclusions formed by the learned Munsiff to conclude that the voters in A and B schedule had cast double votes rendering all their votes void and as such, there is no merit in the appeal, with the result, it was dismissed. Concurrent finding so entered by the two courts below by which both the courts have held that eight votes cast in favour of the returned candidate, the revision petitioner are void in view of the double voting cast by the voters under A and B schedule with the result of setting aside his election and declaring the first respondent, the petitioner in the election petition, as having been elected from ward No.3 of Elathur Grama Panchayat by a majority of seven votes, is assailed in the revision. 4. At the out set it has to be pointed out that the scope of revisional power vested with the High Court is intended to supervise the subordinate courts to avoid miscarriage of justice. The revisional power conferred on the High Court does not provide any right to a litigant aggrieved by any order of the subordinate courts to approach the High Court for relief as the exercise of revisional jurisdiction is not linked with a substantive right. The revisional jurisdiction is a CRP No.628/08 - 7 - supervisory power to keep the subordinate courts within the bounds of their jurisdiction in cases involving jurisdictional infirmity. It is not within the province of the High Court to enter into the merits of the evidence. It has only to examine whether the order subjected to revision satisfy the requirements of law and whether the irregularity as to failure or exercise of jurisdiction is such as to justify interference with such order. In the absence of any jurisdictional error committed by the subordinate courts, the High Court will not interfere in its revisional jurisdiction. However, the High Court may step in to exercise its revisional jurisdiction where the subordinate court has assumed jurisdiction which it does not have power, or fail to exercise jurisdiction which it does have, or the jurisdiction available has been exercised by the court in a manner not permitted by law, and thereby failure of justice or a grave injustice has occasioned to one or other parties in the suit or proceedings. In exercise of revisional power, the High Court will not indulge in reappreciation or evaluation of evidence unless it is satisfied that the order passed by the subordinate court patently suffers from jurisdictional infirmity. 5. The challenges raised by the revision petitioner to attack the concurrent findings of the courts below have to be examined within CRP No.628/08 - 8 - the limited scope of the revisional jurisdiction conferred on this court. Learned counsel for the revision petitioner attacked the concurrent findings entered by the courts below contending that the first respondent, the petitioner in the election petition, has not raised any objection to the electoral roll at the appropriate time and got it rectified so as to delete the names of the voters covered by A and B schedule whose names are stated as appearing more than once in the electoral rolls in different booths and wards. The grounds raised in the election petition do not fall within the scope of sections 102 and 103 of the Kerala Panchayat Raj Act, 1994 and, so much so, setting aside the election of the revision petitioner, the returned candidate, and declaring the first respondent as elected, was not only improper, but totally unsustainable, submits the counsel. However, the main thrust of attack canvassed by the learned counsel with considerable force was that the trial court went wrong in examining the ballot papers without the necessary foundation to do so being established by the evidence tendered by the first respondent, the petitioner in the election petition, which was so directed to be satisfied before embarking upon such a course in the judgment rendered by this court in a previous writ petition, and, such scrutiny of ballot papers to find CRP No.628/08 - 9 - out whether there was double voting, according to the counsel, was patently unjustifiable as it violated the secrecy of the ballots cast in the election. The nonexamination of the voters named in A and B schedule to substantiate that they had cast double voting is projected as fatal in accepting the case of the first respondent that they had cast double voting to treat the votes cast by them in favour of the revision petitioner as void. No steps were taken by the first respondent, according to the counsel, to identify the voters named in A and B schedule and when he failed to do so, it is submitted, the election petition ought to have been dismissed. According to the counsel, the witnesses examined by the first respondent were all partisan and biased as they were followers of the party or united front to which the party of the first respondent belonged, and their interested evidence deserved only outright rejection. On the other hand, the learned counsel for the first respondent submitted that the grounds canvassed by the petitioner had been agitated before both the courts below and found against giving cogent and convincing reasons. There is absolutely no merit in the challenges raised in the revision and the first respondent, the petitioner in the election petition, according to the learned counsel, had taken all steps to CRP No.628/08 - 10 - prove the identity of the voters named in A and B schedule and their identity was so established by convincing materials tendered in the case and the same was accepted by both the courts below. The concurrent findings arrived at by both the courts below that the voters in A and B schedule had cast double voting as alleged by the first respondent, it is submitted by the counsel, is fully supported by the legal evidence tendered in the case. The revision, according to the counsel is, therefore, liable to be dismissed. 6. I do not find any merit in the submission of the learned counsel that the first respondent has not made out a case with specific particulars stating the grounds under sections 102 and 103 of the Kerala Panchayat Raj Act to impeach his election and declare him as elected. The specific case of the first respondent for impeaching the election of the revision petitioner is double voting by the voters named in A and B schedule, two voters in A schedule casting double votes in two booths in the same ward and four voters in B schedule casting double votes in two wards of the same Panchayat. Section 76(3) and (4) of the Kerala Panchayat Raj Act, 1994 forbids any person in general election in casting votes more than once in one constituency in the same level, or in the same CRP No.628/08 - 11 - constituency, and if it is violated, the votes cast by him shall be void. Sub-sections (3) and (4) of Section 76 of this Act read thus: “(3) No person shall vote at a general election in more than one constituency of the same level, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void.” “(4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for that constituency more than once, and if he does so vote, all his votes in that constituency shall be void.” An election petition filed on the ground of double voting by voters in favour of the returned candidate squarely and strictly falls under Section 102(1)(d)(iv) of the Kerala Panchayat Raj Act which states in explicit terms that the court shall declare that the election of the returned candidate to be void if it is satisfied that the result of the election in so far as it concerned the returned candidate has been materially affected by any noncompliance with the provisions of the Act or any Rules made thereunder. So much so, the challenge mooted by the counsel that in the election petition specific ground CRP No.628/08 - 12 - has not been made out for declaring the election of the petitioner as void as contemplated under Section 102 deserve to be taken note of only for its rejection. 7. The first respondent, the petitioner in the election petition, had not availed the opportunity to rectify the mistakes in the electoral rolls with respect to the inclusion of some voters in more than one booth in the same ward or in more than one ward in the Panchayat, which was canvassed by the learned counsel as a serious infirmity affecting the merit of the election petition, is unworthy of any merit. The first respondent or any other voter failed to take such steps before the electoral rolls were finalised, does not in any way affect a challenge by way of election petition on the ground of double voting by the voters in favour of the returned candidate to impeach his election since that is one of the grounds by which the election of a returned candidate can be impeached as provided under Section 102 of the Kerala Panchayat Raj Act. Now coming to the challenge raised that the trial court went wrong in examining the ballot papers without necessary foundation to do so being established by the materials tendered by the first respondent, I find the opening of the election records was proceeded by the learned Munsiff complying with the CRP No.628/08 - 13 - directions in the judgment rendered by this court in the previous writ petition challenging the scrutiny of the ballot papers of the voters of A and B schedule to examine the votes cast by them. The petitioner, the returned candidate, had challenged the order passed by the learned Munsiff in I.A.No.1310/07 by way of Writ Petition, W.P.C.No.19354 of 2007 before this court, which was disposed by this court with directions to the court below to satisfy itself whether the person whose names appear in both the voters list are one and the same and then to examine the question whether they had cast votes more than once constituting double voting rendering both their votes void. It was specifically directed that from the materials available if satisfied that the names of the persons figuring in the two booths as stated in A schedule and in two wards in B schedule are found to be the same, it may proceed with calling for the election records and scrutinising them to determine the question of double voting. The learned Munsiff, from the materials tendered, on being satisfied as directed, entered a finding that the persons named in A and B schedule whose names appeared in more than one booth or wards are the same persons, allowed the application, I.A.No.1310 of 2007 moved by the first respondent, to proceed with the scrutiny of CRP No.628/08 - 14 - the votes cast by the voters named in A and B schedule. The order passed in the above I.A. had been challenged by the petitioner by way of a revision before this court, and that too was also dismissed. In order to determine the question whether the voters named in A and B schedule who were found to be included as voters in more than one booth or one ward in the Panchayat, as established by the materials tendered in the case, had cast double voting in favour of the petitioner as alleged, it was necessary to open the election records and examine the votes cast by those voters. Secrecy of the election which is projected to challenge the scrutiny of the election records, needless to point out, is subject to the purity of the election which is all the more important for governance through a democratic system. The apex court has held that to preserve the purity of the election, opening of the election records and scrutiny of the ballots has to be proceeded with where sufficient grounds are made out by the materials tendered that such a course of enquiry is essential to advance ends of justice. The nonexamination of the voters named in A and B schedule to prove the case of double voting and reliance placed on the witnesses examined by the first respondent, who are alleged to be partisan and biased as being the followers of his party CRP No.628/08 - 15 - or of the front to which his party also is a member, it is noticed, has been repelled by both courts below adverting specifically to the materials tendered in the case, which indicate in unmistakable terms that every effort was made by the first respondent, petitioner in the election petition, to examine the voters named in A and B schedule, who remained at large evading from the court. The evidence of the witnesses examined by the first respondent after meticulous scrutiny was found reliable and convincing by the court to hold that the voters named in A and B schedule had cast double voting in the election which is further established by the scrutiny of the election records. The learned District Judge in his judgment has specifically adverted to each and every challenges raised by the petitioner with reference to the materials tendered and the evidence of the witnesses to conclude that the voters named in A and B schedule whose names appeared in more than one booth or in more than one ward are the same as alleged and all these voters had cast more than one vote in the same election in more than one booth or in one ward in the Panchayat. I do not find any merit in the challenges raised against the conclusion so formed by the two courts below concurrently. The result of the election by which the first respondent was elected had been CRP No.628/08 - 16 - materially affected by the double voting cast by the voters named in A and B schedule in the election is fully established by the materials tendered in the case and it was further shown that excluding the void votes cast by such voters, the first respondent had got a majority of seven votes more than the votes polled by the petitioner. In such circumstances, setting aside the election of the petitioner and declaring the first respondent as duly elected from ward No.3 of Elathur Grama Panchayat as ordered by the learned Munsiff, and which was upheld in appeal by the learned District Judge, is unassailable. Revision is devoid of any merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE