IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 WP(C).No. 4824 of 2007(Y) --------------------------------- OPELE.45/2005 of MUNSIFF COURT, TIRUR .................... PETITIONER(S): ------------------------ M. ABDUL KAREEM @ KUNHIPPA, S/O.MOHAMMED KUTTY, PUTHOOR AMSOM, CHERUKUNNU DESOM, TIRURANGADI TALUK. BY MR.T.KRISHNAN UNNI, SENIOR ADVOCATE RESPONDENT(S): ------------------------ KUNNATHADATHIL KUTTYHASSAN, S/O.AYAMU, PUTHOOR AMSOM, CHERUKUNNU DESOM, TIRURANGADI TALUK. BY ADV. SRI.BABU S. NAIR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2009, ALONG WITH WPC NO. 7412 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.4824/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ELECTION PETITION BEFORE THE MUNSIFF COURT, TIRUR DT. 21.10.05. P2:- COPY OF THE RELEVANT PAGES OF THE VOTERS LIST IN WARD NO.11 OF OTHUKKUNGAL GRAMA PANCHAYATH. P3:- COPY OF THE IA 143/07 IN OP. 45/05 ON THE FILE OF MUNSIFF COURT, TIRUR . P4:- COPY OF THE ORDER OF THE MUNSIFF COURT, TIRUR IN IA. 143/07 IN OP. 45/05 DT. 3.2.07. TRUE COPY P.S. TO JUDGE TSS (C.R.) P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) Nos. 4824 & 7412 OF 2007 ......................................................................... Dated this the 18th March, 2009 J U D G M E N T The grievance of the petitioner ( who is one and the same in both the Writ Petitions) is against the rejection of the I.As. filed before the court below/Election Tribunal to summon the concerned witnesses showing the correct address as involved in W.P.(C) 4824 of 2007 and against rejection of the prayer to open up the election records and to examine the marked counterfoils, marked electoral rolls and the ballot papers in substantiation of different grounds raised by the petitioner, who is the defeated candidate, as involved in the other Writ Petition. 2. The petitioner was a candidate who contested the election in respect of Ward No.XI of Othukkungal Grama Panchayat. On completion of counting, the respondent was declared as won by a margin of three votes. Though the request W.P.(C) Nos. 4824 & 7412 OF 2007 2 of the petitioner for re-counting was allowed, it did not tilt the balance in any manner. Hence declaration of the result was confirmed which in turn was questioned by the petitioner by filing Ext.P1 Election Petition (O.P.(Election)No.45 of 2005) before the Election Tribunal, Munsiff's Court, Tirur under the relevant provisions of law. 3. The main grounds of challenge specifically raised by the petitioner before the Election Tribunal and are forming the subject matter of consideration before this court are as follows: (i) two persons by name Kunnathadathil Abdul Gafoor and Kunnathadathil Abdul Rahiman - whose names and particulars have been given as eligible voters in respect of the same constituency elsewhere as well, were actually mentally incapacitated persons who were permitted to cast their votes through companions by way of open votes which actually did not come within the purview of 'Rule 36' of the Kerala Panchayat Raj (Conduct of Election)Rules (hereinafter referred to as the 'Rules'). (ii) a voter by name Kunnathadathil Gafoor who is a physically handicapped person, though was having absolutely no incapacity W.P.(C) Nos. 4824 & 7412 OF 2007 3 as contemplated under Rule 36 of the Rules, to have the help of a companion, was wrongly permitted to cast the vote with the help of a companion causing adverse results and consequence to the petitioner; (iii) Referring to five instances, the petitioner asserts that the persons named therein have cast their votes in two different constituencies resulting in 'double voting'; by virtue of which, as provided under Section 76(4) of the Kerala Panchayat Raj Act,1994 (hereinafter referred to as the 'Act'), their votes are liable to be declared as void. (iv) The postal ballot returned by the concerned voter was not opened or counted by the Returning Officer stating that the number of the constituency marked on the cover was not correctly addressed to the particular constituency-which however was pointed out as the fault/lapse on the part of the Returning Officer himself who had written the entries thereon, as provided under the relevant Rules/forms. 4. In the course of the proceedings, the petitioner examined witnesses as P.Ws. 1 to 14 and also marked different W.P.(C) Nos. 4824 & 7412 OF 2007 4 documents to substantiate his points. Summons was sought to be issued to two voters in their address showing the house name as 'Kunnathadathil Abdul Gafoor and Kunnathadathil Abdul Rahiman ' as appeared against Sl.No.490 and 492 in the voters' list . The said request was considered and granted by the court below as per the order dated 07.12.2006 in I.A.No.1955 of 2006. But the summons was returned from the above two persons, stating that their address was not correctly shown; under which circumstances, the petitioner filed I.A.No. 143 of 2007 to serve summons to the above two persons in their address as shown against the entry Nos.542 and 543 of the voters' list (showing the house name as 'Kunnakkadan Abdul Gafoor' and 'Kunnakkadan Abdul Rahiman). The court below however dismissed the said I.A. stating that there was no specific pleading as to for the purpose for which the witnesses were proposed to be summoned and further that it was only an attempt to protract the proceedings, which in turn has been subjected to challenge by filing Writ Petition No. 4824 of 2007 before this court. W.P.(C) Nos. 4824 & 7412 OF 2007 5 5. Subsequently on conclusion of examination of the witnesses, the petitioner filed I.A. 238 of 2007 before the court below/Election Tribunal seeking to open the election records including the marked counterfoils, marked voters' list, ballot papers etc, which were already produced before the court pursuant to the orders passed in I.A.No. 840 of 2006 . Adverting to the deposition of witnesses and the pleadings on record and also relying on the judicial precedents as to the necessity to maintain utmost secrecy of ballots, the court below observed that the petitioner had failed to substantiate his case by adducing adequate evidence and that the request made by the petitioner to open the election records would only amount to a roving enquiry which was held as not permissible and accordingly the I.A. was dismissed, though no final orders were passed in the Election Petition presumably on the basis of the interim order passed by this Court. This order has been subjected to challenge in W.P.(C) 7412 of 2007. 6. With regard to the prayer in the former Writ Petition, the learned Senior Counsel for the petitioner submits that filing of W.P.(C) Nos. 4824 & 7412 OF 2007 6 I.A.No. 143 of 2007 was necessitated only on return of summons by the concerned addressee (on allowing I.A.1955 of 2006) stating that the address was not correctly shown. The pleadings and prayer contained therein were more or less the same as contained in I.A.1955 of 2006. The petitioner contends that the very same persons were shown at two different places in the voters' list, though describing the particulars in a slightly different manner. The contention is that examination of said persons was very much essential to substantiate the ground of attack. 7. Learned counsel for the respondent, referring to the decision in Vijayaraghavan vs. Girija Surendran ( 2002 (1) KLT S.N. 86 [Case No.110] ) submitted that there was no specific pleading as to the purpose for which the summons were sought to be issued and that it was only to protract the proceedings, which contention was accepted by the court below. On considering the materials on record, it is very much evident that the specific pleading of the petitioner was that the concerned persons, though enlisted at two different places of the W.P.(C) Nos. 4824 & 7412 OF 2007 7 voters' list of the same constituency were the very same persons and that the prayer made to examine the said persons in the address of the persons concerned as shown at Sl.Nos. 490 and 492 was originally granted by the Election Tribunal by allowing I.A. 1955 of 2006. The very same requirement was reiterated in the subsequent I.A. filed as I.A.No. 143 of 2007 seeking to serve summons in the address as given under entry Nos. 542 and 543, when the summons issued to the concerned persons in the other address, pursuant to the order passed in I.A.No.1955 of 2006 was returned unserved stating that the address was not correct. As such, the finding of the court below that no specific purpose has been shown to summon the witnesses vide I.A. 143 of 2007 cannot be held as correct or sustainable. The finding of the court below that the attempt of the petitioner was only to protract the proceedings is also not justified, obviously for the reason that the petitioner cannot be considered as a 'beneficiary' of such a tactics; especially when he is the defeated candidate and is to be actually aggrieved because of protraction of the proceedings, if any, while the respondent is enjoying the fruits on declaration W.P.(C) Nos. 4824 & 7412 OF 2007 8 of the result in the election. As the matters stand so, it was not at all correct or proper for the court below to have denied the opportunity to the petitioner to substantiate his case and hence it has necessarily to be set aside. 8. Coming to Writ Petition No.7412 of 2007, with regard to the course adopted by the Presiding Officer in respect of points (i) and (ii) permitting the concerned voters to cast their votes through their companions, it is contended by the petitioner that it is outside the purview of 'Rule 36' of the Rules, which is extracted below for convenience of reference. “ Rule 36: Recording of votes of blind or infirm electors:-(1) If the Presiding Officer is satisfied that owing to blindness or other physical infirmity an elector is unable to recognise the symbols on the ballot paper or to make a mark thereon without assistance, the Presiding Officer shall permit the elector to take with him a companion of not less than eighteen years of age to the voting compartment for recording the vote on the ballot paper on his behalf and W.P.(C) Nos. 4824 & 7412 OF 2007 9 in accordance with his wishes, an if necessary, for folding the ballot paper so as to conceal the vote and inserting it into the ballot box. Provided that no person shall be permitted to act as the companion of more than one elector at any Polling Station on the same day: Provided further that before any person is permitted to act as the companion of an elector on any day under sub-rule(1), the person shall be required to declare that he will keep secret the vote recorded by him on behalf of the elector and that he has not already acted as the companion of any other elector at any Polling Station on that day. (2) The Presiding Officer shall keep a record of all such cases in Form No.22. ” 9. From the materials on record, it can be seen that the persons dealt with in points 1 and 2 were not having any disability as envisaged under Rule 36, so as to make the competent authorities to satisfy that the disability was of such nature and of such extent that the voters were unable to W.P.(C) Nos. 4824 & 7412 OF 2007 10 recognise the symbols on the ballot paper or to make mark thereon without the assistance of a companion for recording the vote. What is contemplated under Rule 36 is not a mere physical disability alone. The crucial aspect to be looked into is whether the voter was unable to recognise the symbols on the ballot paper or to make a mark thereon without the assistance of a companion. In the case of the two persons coming under point (i), since the rule does not contemplate any provision for permission to be granted with respect to such persons who are mentally incapacitated, the question of providing companion does not come to the picture at all. More so when the factual position brought to light, from the evidence given by the father of the said two persons examined as P.W.14 and also by the Doctor who was examined as P.W. 13, the said persons are recorded as having a mental incapacity with certified disability of 50% and 45% respectively. The learned counsel for the respondents points out that the said two persons do not come within the prohibited area as stated under Section 17(1) (b) in so far as they have not been declared as mentally incapacitated by a competent W.P.(C) Nos. 4824 & 7412 OF 2007 11 court of law and hence their votes can be counted. But the question is whether the said persons, with the proven extent of mental incapacity, though not declared by a competent court of law, could have been permitted to exercise their voting right through a companion. Obviously, Rule 36 of the Rules does not come to the rescue. 10. In the case of the person named under point (ii), the undisputed facts and figures show that the said voter was having a physical incapacity and was unable to move about freely. The evidence put forth by the petitioner shows that he was running a telephone booth and that he was riding a three wheeler, which has not been rebutted from the other side. In the said circumstance, the question is whether he was an elector who was unable to identify and recognise the symbols on the ballot paper or to make a mark thereon without the assistance of a companion as contemplated under Rule 36 and as permitted by the Presiding Officer. It can be answered only in the negative. 11. With regard to point (iii), the question of 'double voting', it is to be noted that the petitioner has raised specific W.P.(C) Nos. 4824 & 7412 OF 2007 12 averments in Ext.P1 Election Petition as to the name, address, house number, Sl.No. etc., of the persons concerned, stating that altogether there are five instances of double voting. All the above persons have been examined before the court below as P.W.Nos. 8 to 12 and most of them have conceded before the court below that their names and particulars appeared in the electoral roll at two different places , though they asserted that they had cast their votes only once and that no objection was raised from any corner at the time of casting their votes. Contrary to this, the definite case of the petitioner is that the persons concerned have cast their votes in different constituencies against both entries as given in the voters' list and in the said circumstance, all the votes cast by the above voters are liable to be declared as void by virtue of Section 76 (4) of the Act. After discussing the evidence on record, the court below has observed that there is some variation with regard to the description of the persons concerned and their house number in the different constituencies and hence that they were not the same persons. This appears to be rather paradoxical in nature, W.P.(C) Nos. 4824 & 7412 OF 2007 13 since even the concerned voters who were examined before the court below have not disputed their identity and rather they have conceded that their names have appeared in both the voters' lists in respect of the different constituencies. As such, the remaining question is whether the persons concerned had actually cast their votes twice which is a matter to be proved by examining further available materials/evidence. 12. The reasoning given by the court below to reject I.A.No. 238 of 2007 in O.P.(Election) 45 of 2005 stating that 'no objection was ever raised' by the petitioner or his election agent at the time of double voting appears to be rather puerile. This is for the plain reason that the question of 'double voting' can be established only on conclusion of the process of election. In other words, nobody will be in a position to know whether the concerned voter had already exercised his right of franchise elsewhere, from any of the documents made available before the Presiding Officer or the counting agents during the course of voting. For the very same reason, it cannot be said that the petitioner or his polling agent ought to have raised the objection, W.P.(C) Nos. 4824 & 7412 OF 2007 14 if any, with regard to 'double voting' at the time of voting and hence the impugned order cannot survive on this score. 13. With regard to the question of postal ballot under Point No.(iv), the learned Senior Counsel for the petitioner submits that the refusal on the part of the returning officer from opening the postal ballot, referring to the wrong 'entry' on the cover as to the particular constituency to which it was addressed, is very much wrong and unfounded. From Form 19 and Rule 23 of the Rules showing the manner of issuance of postal ballot and sending the same in a sealed cover, it is obvious that the relevant entries on the cover are to be made by the Returning Officer himself. This being the position, absolutely no fault or lapse can be attributed to the voter or the petitioner in this regard. Then the only point to be looked into is whether the concerned 'constituency' shown on the postal ballot returned after voting, was identifiable or not. 14. It is evident from the deposition of PW4, the Returning Officer, that the identity of the cover containing the postal ballot was doubted because of the obscure marking of the figure, W.P.(C) Nos. 4824 & 7412 OF 2007 15 showing the constituency. Since the Returning Officer was admittedly one and the same, the actual fact whether any such postal ballot was issued in respect of any other constituency, as described on the cover containing the postal ballot involved herein could have been ascertained by him by referring to the relevant records as to the issuance of the postal ballots by the concerned Returning Officer, who himself was responsible for making the entries on the concerned cover. In the absence of any steps taken by the Returning Officer to identify the postal ballot, the reason stated for rejecting the same cannot be said as correct or sustainable. 15. The learned counsel for the respondents points to the necessity to maintain utmost secrecy of ballot papers with reference to various judicial pronouncements by the Apex Court and by this Court asserting that opening and examining the election records can be done only on arriving at satisfaction by the Court that such a step is very much essential to bring out the truth. The learned counsel further asserts that such satisfaction can be recorded by the court only on the basis of adequate W.P.(C) Nos. 4824 & 7412 OF 2007 16 pleading and evidence brought on record. Reliance is sought to be placed on the decisions rendered by the Apex Court in AIR 1975 SC 403 [Chanda Singh v. Ch.Shiv Ram Varma and others], AIR 1984 SC 396 [Hari Ram v. Hira Singh and others], AIR 1993 SC 367 [Shri Satyanarain Dudhani V. Uday Kumar Singh and others] and AIR 2003 SC 304 [Mahender Pratap v. Krishnan Pal and others]. The learned counsel submits that opening of the ballot paper can be permitted only under exceptional circumstance i.e., when the evidence tendered before the court points to such an essentiality revealed on the basis of examination of such other records like marked counter foil of the ballot papers, , marked voters list etc. This Court finds that there is considerable force in the submission made by the learned counsel and such exercise as to the opening of the ballot papers shall be pursued only as the last step which course is very much permissible in appropriate cases as evident from the dictum laid down in most of the above cases and also by this court in 2002 (2) KLT short note 72 (case No.89) [Union of India v. Association for Democratic Reforms]. W.P.(C) Nos. 4824 & 7412 OF 2007 17 16. Considering the data of the instant case in the above background, the petitioner has raised necessary pleadings and adduced evidence - oral as well as documentary - to persuade the court to arrive at a finding that examination of the election records has also to be pursued step by step. This is to secure the purity of voting in larger public interest, lest it should lead to improper reflection of the will of the voters; of course keeping in mind that opening of the ballot papers shall be pursued only as the last step when such an exercise is rendered as inevitable on the basis of the scrutiny of other election records produced before the Court, vindicating the case put forth by the petitioner. 17. In the above facts and circumstances, both the impugned orders in these writ petitions are set aside. I.A.No.143 of 2007 in O.P.(Election) No.45 of 2005 on the file of the Munsiff's Court, Tirur is allowed and the petitioner is at liberty to take summons to examine the named witnesses before the court below. The order passed by the court below in I.A. No.238 of 2007 is intercepted to the extent as specified herein before, so W.P.(C) Nos. 4824 & 7412 OF 2007 18 as to enable the petitioner to substantiate his case with reference to the election records already produced before the court below and the court below needs to proceed to open the ballot papers only if the court is satisfied that the petitioner has substantiated his case on the basis of the other election records such as marked counter foil, marked voters' list etc., justifying the necessity to open the ballot papers as well. Since the matter is pending quite long, O.P.(Election) 45 of 2005 pending before the Munsiff's Court Tirur shall be considered and finalised within a further period of six months from today. These writ petitions are allowed to the above extent. The parties shall bear their cost. P.R.RAMACHANDRA MENON, JUDGE. lk