IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 OP(C).No. 3236 of 2011(O) ------------------------------------- PETITIONER: ------------------- PRABHAVATHI, D/O.MADACHIMPARA VELAYUDHAN, PARLIKKADU VILLAGE, PARLIKKADU DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT, PIN-680 623. BY ADV. SRI.GOPAKUMAR R.THALIYAL. RESPONDENTS: ------------------------ 1. SMT.DEEPA, W/O,MADACHIMPARA VISWANATHAN, PARLIKKADU VILLAGE, PARLIKKADU DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT, PIN-680 623. 2. SMT.R.VASANTHA, RETURNING OFFICER, B-78, WADAKKANCHERRY BLOCK PANCHAYATH, TALAPPILLY TALUK, THRISSUR DISTRICT, PIN-680 582,(OFFICIAL ADDRESS: EXECUTIVE ENGINEER, IRRIGATION DIVISION, THRISSUR,PIN-680 520) 3. SMT.RADHAMANI, RETURNING OFFICER, G-16, MUNDATHIKODE GRAMA PANCHAYATH, TALAPILLY TALUK, THRISSUR DISTRICT,PIN-680 581) (OFFICIAL ADDRESS:ASST.DIRECTOR OF CO-OPERATIVE AUDIT,TALAPPILLY TALUK,THRISSUR DISTRICT,PIN-680 582.) R1 BY ADVS. SRI.P.P.THAJUDEEN, SMT.C.SEENA. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.3236/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P1: TRUE COPY OF THE ELECTION O.P.NO.25/2010 BEFORE THE MUNSIFF COURT, WADAKANCHERRY DATED 25.11.2010. EXT.P2: TRUE COPY OF THE COUNTER STATEMENT ALONG WITH THE AFFIDAVIT IN ELECTION O.P.NO.25/2010 BEFORE THE MUNSIFF COURT, WADAKANCHERRY DATED 26.2.2011. EXT.P3: TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A.NO.201/2011 IN ELECTION O.P.NO.25/2010 BEFORE THE MUNSIFF COURT, WADAKANCHERRY DATED 21.01.2011. EXT.P4: TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A.NO.1165/2011 IN ELECTION O.P.NO.25/2010 BEFORE THE MUNSIFF COURT, WADAKANCHERRY DATED 1.6.2011. EXT.P5: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A.NO.1165/2011 IN ELECTION O.P.NO.25/2010 BEFORE THE MUNSIFF COURT, WADAKANCHERRY DATED 14.6.2011. EXT.P6: TRUE COPY OF THE ORDER PASSED IN I.A.NO.1165/2011 IN ELECTION O.P.NO.25/2010 BY THE MUNSIFF COURT, WADAKANCHERRY DATED 15.6.2011. RESPONDENTS' EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3236 of 2011 --------------------------------------- Dated this 08th day of November, 2011 JUDGMENT First respondent in O/P(Ele).No.25 of 2010 of the Court of learned Munsiff, Wadakkancherry is the petitioner before me challenging Ext.P6, order dated 15.06.2011 directing the Chief Electoral Officer to produce the documents in Court through a duly authorised agent in sealed condition. First respondent challenged election of petitioner in the local body election. Petitioner got 562 votes as against 561 votes secured by the first respondent, 24 votes being declared invalid. First respondent alleged in the election petition that valid votes cast in her favour were declared invalid by the Returning Officer. She stated that in the recounting, 24 votes were held to be invalid of which two votes cast in her favour are actually valid but, improperly rejected by the Returning Officer. According to the first respondent, had those votes been reckoned as cast in her favour, she would have been declared elected. 2. In the course of proceeding, first respondent filed I.A.No.1165 of 2011 to call for the documents relating to election. That application was allowed on there being no objection (as O.P(C).No.3236 of 2011 -: 2 :- recorded in Ext.P6, order). Learned counsel submits that it is in correct to say that there was no objection to I.A.No.1165 of 2011, Ext.P5 being the objection. It is submitted by learned counsel that no question of recounting is involved since there is no prayer for recounting in Ext.P1, election petition. Further, no material has been placed before the learned Munsiff to show that there was any improper rejection of votes of the first respondent so that it was necessary to summon the relevant documents and inspect/recount the votes. 3. Learned counsel for first respondent contended that in view of the averments in Ext.P1, election petition, it was necessary to inspect the votes treated by the Returning Officer as invalid to ascertain whether the plea of first respondent that votes cast in her favour were improperly rejected is correct or not. In that view of the matter there is no reason to interfere with the impugned order. 4. Having regard to the averments in Ext.P1, election petition what I can understand from Ext.P4, application preferred by the first respondent is a request to summon the relevant documents obviously to verify the same to decide on the plea raised by the first respondent that votes cast in her favour were O.P(C).No.3236 of 2011 -: 3 :- improperly rejected. That prima facie does not appear to me as a request for recounting, it appears to me only as an inspection of the relevant ballot papers to decide whether there was any improper rejection or acceptance of the same. 5. But, even when there is request for such inspection, it cannot be done for the mere asking. In Narayanan Vs. Muhammed (1982 KLT 40) in paragraph 5 it is observed that the order of inspection of ballot papers cannot be had for the asking for satisfying oneself about correctness of counting unless some doubts are thrown in by positive evidence about such correctness. The Supreme Court in Bhabhi Vs. Sheo Govind and Ors. (AIR 1975 SC 2117) has also referred to the circumstances under which there could be a sample inspection of ballot papers. It is stated that the Court must be prima facie satisfied on the materials produced before the Court regarding the truth of allegations made for a recount that the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties. 6. In the present case, it is admitted by counsel on both sides that parties have not adduced any evidence. I must also say O.P(C).No.3236 of 2011 -: 4 :- that learned Munsiff has not ordered inspection of the ballot papers or other documents. Instead, by Ext.P6, order learned Munsiff has only directed production of the documents (sought for by Ext.P4, application) in Court through a duly authorised agent in sealed condition. What is required is only to direct and clarify that inspection of ballot papers shall be done only after first respondent adduced some evidence and from the materials on record learned Munsiff is satisfied that such inspection is required. Resultantly, this original petition is disposed of making it clear that learned Munsiff shall inspect the ballot papers and other documents produced to decide whether there was any improper rejection of votes cast in favour of the first respondent or not, after the first respondent adduced some evidence and on the evidence so adduced learned Munsiff is satisfied of the necessity to inspect the relevant records for the said purpose. (THOMAS P. JOSEPH, JUDGE) Sbna/-