IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 CRP.No. 490 of 2009() --------------------- EA.6/2008 of D.C & SESSIONS COURT,TRIVANDRUM OPE.20/2005 of I ADDL.M.C.,NEYYATTINKARA .................... REVN. PETITIONER(S): APPELLANT/1ST RESPONDENT --------------------------------------------- T.VINOD KUMAR, S/O. THAMBI, MERIAM CODE KULANTHINKARA VEEDU, KUNNATHUKAL, KARAKKONAM.P.O., KUNNATHUKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DIST. BY ADV. SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA RESPONDENT(S): PETITIONER & RESPONDETS 2,3, AND 4 ------------------------------------------------- 1. G. ANIL KUMAR, S/O. GOPALA PILLAI, GOPALA SADANAM, KUNNATHUKAL, KARAKKONAM.P.O. KUNNATHUKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DIST. 2. R. VINOD KUMAR, S/O. RAVEENDRAN NAIR VINU NIVAS, THATCHAMCODE, KUNNATHUKAL VILLAGE NEYYATTINKARA TALUK, THIRUVANANTAPURAM DIST. 3. P.VIJAYAKUMAR, D/O. PARUKUTTY, CHANDRAVILAKATHU VEEDU, CHAVADI, KUNNATHUKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DIST. 4. MADHUSOODANAN NAIR, S/O. SUKUMARAN NAIR ANEESH BHAVAN, CHAVADI, KUNNATHUKAL VILLAGE NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DIST. ADV. SRI.G.S.REGHUNATH FOR R1 SRI.G.SUDHEER FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON 08/03/2010 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN,J -------------------------------------- C.R.P NO. 490 OF 2009 ----------------------------------- Dated this the 8th day of March 2010 ------------------------------------------------- ORDER Revision petitioner was the returned candidate from Ward No. 14, Chavadi Ward of Kunnathukal Grama Panchayat in the general election held on 24/09/2005. The respondents were the other candidates who contested the election from that ward. 2. Petitioner and the 1st respondent got equal votes in counting and when a decision was made by the returning officer by lot, the petitioner was elected. Election of the petitioner was impeached by the 1st respondent filing election petition as O.P (Ele.) No.20 of 2005 before the Additional Munsiff Court-I, Neyyattinkara imputing allegations that there were number of double votings in favour of the petitioner and various irregularities were committed by the returning officer in counting of votes. Petitioner resisted that application filing a counter denying the allegations impeaching his election. 3. On the side of the petitioner in the election petition, PW1 to 8 were examined and Exts.A1 to A4 were marked. Exts.X1 to X9(a) series were also marked. 1st respondent in the revision petition was examined as DW1. The learned Munsiff after considering the materials came to the conclusion that two among C.R.P NO. 490 OF 2009 Page numbers the voters examined as PW6 and PW7 had cast their votes in more than one ward including Chavadi Ward, and so much so, the votes cast by them in the above ward were void. On examining the ballot papers of those two voters, PW6 and PW7, it was found that they had voted in favour of the revision petitioner. Since the votes cast by them were void, those two votes were reduced from the total number of votes polled in favour of the revision petitioner. Votes cast in his favour on such deduction was found to be less by one vote than the votes polled in favour of the petitioner in the election petition. Election of the revision petitioner was thereupon set aside and the petitioner in the election petition was declared elected from ward No.14, Chavadi Ward of Kunnathukal Grama Panchayat by the learned Munsiff allowing the election petition. Order of the learned Munsiff was challenged by the revision petitioner preferring an appeal as Election Appeal No.5 of 2008 before the District Court, Thiruvananthapuram. The learned District Judge after reappreciating the materials produced and hearing the counsel on both sides concurred with the findings entered by the learned Munsiff and dismissed the appeal. Revision is directed against the concurrent decision so rendered by the two inferior courts setting aside the election of the revision petitioner and declaring the 1st C.R.P NO. 490 OF 2009 Page numbers respondent as duly elected from Ward No.14, Chavadi Ward of Kunnathukal Grama Panchayat. 4. I heard the counsel on both sides. In the revision, producing a copy of the election petition supplied by the revision petitioner with a petition seeking for its reception as additional evidence, the learned counsel for the revision petitioner contended that there was noncompliance of the mandatory provisions under the Kerala Panchayat Raj Act 1994, hereinafter referred to as the Panchayat Raj Act, in presenting of the election petition impeaching the election of the returned candidate. That ground of attack is raised by the counsel on the footing that there was no proper attestation by the petitioner to the election petition in the copy of the petition supplied to the respondent the revision petitioner. Inviting my attention to Section 89(2) and 93(1) of the Panchayat Raj Act, the learned counsel for the petitioner contended that as there was no proper attestation in the copy of the election petition given to the respondents to such petition, the court should have dismissed the election petition at the threshold as not entertainable. Noncompliance with the provision under Section 89(2) of the above Act, according to the counsel, can be set up even in revision as such defect is fatal in entertaining of an election petition presented to challenge the election of the returned candidate. C.R.P NO. 490 OF 2009 Page numbers 5. The challenge canvassed in the revision with reference to the copy of the election petition produced to impeach the concurrent findings made by the court below advancing a case that there was no proper attestation in the copy of the election petition supplied to the revision petitioner/the returned candidate cannot be given any merit or consideration. If at all the revision petitioner had any such case, it should have been canvassed before the trial court questioning the maintainability of the election petition. Not only that such a challenge was never raised, it is also noticed that the revision petitioner on a previous occasion had approached this court with a writ petition. When an order was passed by the trial court before completion of the evidence to verify the vote cast by PW7 after entering a finding that he had cast double voting in more than one ward, this court had quashed that order for verification directing the learned Munsiff to complete the evidence and then decide the question of verification. Petitioner has no case that any challenge was made as to the maintainability of the petition in the previous writ petition or at any stage earlier on the ground now canvassed in revision before the trial court or even when a writ petition was filed before this court in the circumstance indicated above. It is also noticed that in the memorandum of the revision also no ground is canvassed impeaching the maintianability of the election C.R.P NO. 490 OF 2009 Page numbers petition for the reason that there was defective attestation in the copy of the petition served on the respondents to such petition. Further more, it is noticed from the copy of the election petition served on the revision petitioner/the 1st respondent in the election petition, which is produced before this court, that the petitioner in the election petition had signed on all pages and in the last page, advocate for the petitioner had also subscribed his signature. The apex court, in “F.A Sapa v Singora” (1991(3) SCC 375) has held that what is required is that the copy should be attested by the petitioner to be a true copy of the petition under his signature. The apex court has held thus. “As regards the requirement of attestation, all that Section 81(3) requires is that the copy should be attested by the petitioner to be a true copy of the petition under his own signature. The requirement of this part of the provision is met by each copy having been signed at the foot thereof by the concerned petitioner. No particular form of attestation is prescribed; all that the Sub Section enjoins is that the petitioner must attest the copy under his own signature to be a true copy of the petition.” When that be the law laid by the apex court, a copy of the petition with signature subscribed on all pages by the petitioner to the election petition which is seen subscribed by his counsel on the last page has to be treated as a C.R.P NO. 490 OF 2009 Page numbers duly attested true copy satisfying the compliance required under Section 89(2) of the Panchayat Raj Act. 6. The trial court when it passed an order for verification of the ballots earlier had entered a finding that among the voters examined as PW3 to PW8 only one of them had cast double voting in more than one ward rendering his vote polled in Ward No.14, Chavadi Ward void. That order passed by the trial court for verification of the votes having been set aside and the case remitted by this court in the writ petition filed by the writ petitioner, the court had entered a divergent finding that two among the voters examined, PW6 and PW7, had cast double voting in more than one ward, according to the counsel. The finding so entered conflicting with the previous order is perse wrong and further it indicates there was no application of mind by the trial court to the materials tendered in the case, submits the counsel. The challenge so canvassed is found to be meritless. Before the completion of the trial, the learned Munsiff had passed an order of verification of the ballots. On the materials placed by the petitioner to the election petition and while passing such an order, it was held that he had established his case of double voting by PW7 alone. That order passed by the learned Munsiff was set aside by this court directing him to complete the evidence and then decide the question of verification of the votes to C.R.P NO. 490 OF 2009 Page numbers examine the challenge of double voting. After such verification and analysing the evidence, the learned Munsiff concluded that two voters, PW6 and PW7, had cast double voting and their votes polled in Chavadi ward have to be extracted from the ballots to examine for whom they had voted for excluding the votes cast by them for such candidate. Previously the learned Munsiff had expressed a view that PW7 alone had cast double voting has no significance when the order so passed by the learned Munsiff had been set aside by this court directing reconsideration of the matter. The only question to be looked into is whether the finding subsequently entered that PW6 and PW7 had cast double voting is based on the evidence let in the case. The finding so entered by the learned Munsiff that PW6 and PW7 had cast double voting after reappreciation of the evidence had been approved by the learned District Judge. In that back drop the challenge canvassed that there was a previous finding by the learned Munsiff that only one voter had cast double voting and so much so, the subsequent finding made that two voters had cast double voting is unacceptable as canvassed by the counsel does not have any merit. 7. Petitioner in the election petition had named 12 persons with their addresses as the voters who had cast double voting in more than one ward including the Chavadi Ward from C.R.P NO. 490 OF 2009 Page numbers which the revision petitioner was elected as the returned candidate. He examined six of such voters as PW3 to PW8. The learned Munsiff, on scrutiny of their evidence found, two of them, PW6 and PW7, had cast double voting, both of them in Chavadi Ward and another. As against the other voters examined, it was concluded, the petitioner failed to prove their double voting. The learned Munsiff had concluded that PW6 and PW7 had cast double voting in more than one ward including Chavadi Ward after comparing the signatures found in the courter foils of the ballot papers in the two wards, and as the court is not an expert in comparing the signatures, the conclusion formed on such comparison has no merit and it should not have been acted upon to enter a finding that those two voters had cast votes in more than one ward, is the submission of the learned counsel for the revision petitioner. It is noticed that in the appeal also the same challenge was canvassed, but, repelled by the learned District Judge taking note of the decision rendered by the apex court in “Neelalohithadasan Nadar v George Mascrene” (1993(1) KLT 887). The apex court in the above decision has held that, “When larger public interest is served by expeditious disposal of an election petition, then the course adopted by the High Court as held the court can compare the signature of the witnesses to find out whether they were signatures of the same person”. The C.R.P NO. 490 OF 2009 Page numbers above decision was rendered by a three judges bench of the apex court and that being so, views expressed striking a different note by two judges bench cannot be applied as the correct law on the competency of the court to compare signature of a person in forming an opinion as to whether they were subscribed by the same person. This court in “Mohammed Rafi.S v Fathahudeen” (2008(3) KLJ 276), after adverting to the decisions rendered on the above question has held thus: “The power of the court under Section 73 of the Evidence Act to compare the signatures, the disputed with the admitted, without the aid of an expert cannot be questioned”. So there was nothing wrong with the learned Munsiff on comparing the admitted signatures of PW6 and PW7 with their disputed signatures and forming a conclusion that they had cast double voting in more than one ward including Chavadi Ward. 8. In a case where election of a returned candidate is challenged on the ground of double voting by one or more voters, such double voting by the voter should be established. In the present case, among the voters examined, PW3 to PW8, who are alleged to have cast double voting, two of them, PW6 and PW7, were found to have cast double voting in more than one ward including Chavadi Ward. PW6 admitted his signature in the counter foil, Ext.X8 relating to another ward, Kunnathukal ward. C.R.P NO. 490 OF 2009 Page numbers He also stated that his signature in the counter foil Ext.X8 relating to the Chavadi Ward was similar to his signature. In cross examination, he further stated that he had cast his vote in Chavadi Ward and someone else had cast his vote in the other ward, Kunnathukal Ward. Taking note of his admission that the counter foil Ext.X8 relating to Kunnathukal Ward contain his signature and also on comparison of his signature in the counter foil with admitted signatures, the learned Munsiff concluded that he had cast double voting in more than one ward. Similar if not worse was the evidence of PW7 who admitted his signatures in the counter foils relating to Kunnathukal Ward and Chavadi Ward, Ext.X9 and Ext.X9(a) respectively. He further stated in the election he had voted in two constituencies including Chavadi Ward . Though there was no challenge during the course of his examination that the person named in the counter foils Ext.X9 and Ext.X9(a) relating to the two wards is different, it is seen later a challenge was sought to be raised that the voter named in the two counter foils are different. Before me also it was contended that in the election petition, PW7 is shown as daughter of one Claramma but in the witness list he is shown as the son of one Victor. It is further contended that the witness examined as PW7 was the driver of the petitioner in the election petition and his evidence is therefore unacceptable. The learned District Judge C.R.P NO. 490 OF 2009 Page numbers before whom also the same challenges had been pressed into service had repelled them observing that even when the 1st respondent in the election petition was examined as DW1, he had admitted that the father's name of PW7 is Victor and he had no case that his mother's name is not Claramma. He was the driver of the petitioner to the election petition does not curtail his right or interdict him from casting his vote to a candidate according to his choice. So his interestedness to the petitioner in the election petition as being his driver which was canvassed to impeach his evidence had been rightly repelled by the District Judge. Same challenge canvassed before me also dreserve to be taken note of only for its rejection. 9. The evidence let in the case has conclusively established that two voters, PW6 and PW7, had cast double voting, both of them, in favour of the revision petitioner in Chavadi Ward and also in another ward, Kunnathukal Ward. So, two votes cast by them in favour of the revision petitioner had to be reduced from the double votes polled in favour of the revision petitioner as those votes are void. Section 76(3) of the Panchayat Raj Act mandates thus: “No person shall vote at a general election in more than one constituency of the same level, and if a person votes in morethan one such constituency, his votes in all such constituencies shall be avoided”. Deducting the two votes which C.R.P NO. 490 OF 2009 Page numbers had been cast by PW6 and PW7 in favour of the revision petitioner from the double votes polled in his favour, it was found that he has secured a vote less than the petitioner in the election petition. Since the petitioner in the election petition has secured more than one vote than the revision petitioner the learned Munsiff has set aside the election of the revision petitioner declaring the 1st respondent in the revision as the returned candidate from Chavadi Ward of Kunnathukal Grama Panchayat. The decision of the learned Munsiff as confirmed by the District Judge in appeal is found to be proper, valid and correct. Challenges raised in the revision against the concurrent decision by the two courts below are found to be devoid of any merit. The revision is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// P.A TO JUDGE vdv