IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 CRP.No. 609 of 2009() --------------------- ELECTION APPEAL .7/2007 of DISTRICT COURT,TRIVANDRUM OP(ELECTION) 8/2005 of III ADDL. MUNSIFF COURT,TRIVANDRUM .................... REVN. PETITIONER/APPELLANT/COUNTER PETITIONER ------------------------------------------------- MINI, AGED 28, D/O.VASANTHI, RESIDING AT AKSHAY BHAVAN, DAYA NAGAR, KUDAPPANAKUNNU PO, THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP SRI.P.RAMACHANDRAN NAIR RESPONDENT/RESPONDENT/PETITIONER ------------------------------------ ANITHA, AGED 39, D/O.GOVINDAN, RESIDING AT THEVOORKONAM, HOUSE NO.659, DARSANA NAGAR, PEROORKADA, THIRUVANANTHAPURAM. BY ADV.SRI.RAM MOHAN (CAVEATOR) THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.3332 OF 2009 IN CRP NO.609 OF 2009 CLOSED 15.12.2009 SD/- S.S.SATHEESACHANDRAN, JUDGE. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.609 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 15th December, 2009 ORDER Revision Petitioner is the returned candidate from Ward No.10 Vazhayila Ward of Kudappanakkunnu Grama Panchayat in the general election held on Panchayats on 24.9.2005. Her election was impeached by the respondent, who also contested from the said ward, as vitiated by double voting by seven voters materially affecting the result of the election, filing an election petition as O.P. (Election)No.8 of 2005 before the III Additional Munsiff Court, Thiruvananthapuram. Case of the respondent was that seven voters had cast double voting with six of them casting two votes on the basis of their names appearing in the voters list in the same ward or another, and another, casting two votes, one as a voter in his own name and the other by impersonating a voter in the ward. Whereas on counting of votes, the revision petitioner (the returned candidate) secured 261 votes, and the respondent (petitioner in the election petition) got only 259 valid votes. Parties are hereinafter referred to as the revision petitioner and the respondent for the sake of convenience. Revision Petitioner was declared as the returned CRP No.609/09 - 2 - candidate having secured a majority of two votes. Furnishing the particulars of the seven voters who had been imputed of casting double votes, the respondent in her election petition alleged that the votes cast by such voters are void and since they had voted in favour of the returned candidate her election is liable to be set aside. Respondent also sought for declaring her as the elected candidate from the ward setting aside the election of the returned candidate. Revision Petitioner (returned candidate) filed a counter controverting the allegations raised in the election petition. Objection was also taken as to the nonraising of any challenge by the petitioner over the inclusion of the names of the voters mentioned, who were imputed of casting double votes, at the relevant time when their names had been included in the voters list. She also disputed the imputation made that the voters named in the petition had exercised double voting and one of them cast vote in her favour by impersonation. On the side of the petitioner in the election petition, P.W.1 to P.W.7 were examined and P1 to P6 were exhibited. No evidence was let in on the side of the respondent in the election petition, the returned candidate (the revision petitioner).X1 to X20, ballot papers and other records of election, and C4 and C5 were also exhibited in evidence. Petitioner CRP No.609/09 - 3 - examined five of the six voters named in the election petition who were imputed of having cast double voting. On the materials placed, the learned Munsiff found that out of the five voters examined as P.W.3 to P.W.7, three of them, P.W.4, P.W.6 and P.W.7, had cast double voting in the election. Two of such voters, P.W.4 and P.W.7 were found as having cast votes in ward No.10 of Vazhayila ward and also in another ward in Kudappanakkunnu Grama Panchayat. P.W.6, a voter in ward No.10 Vazhayila ward was found as having cast vote impersonating another voter as well in the same ward apart from casting his vote as a voter in that ward. It was also found that P.W.4 and P.W.7 has cast their votes in favour of the revision petitioner, the returned candidate. P.W.6 was also found as having cast both his votes, as a voter, and the other impersonating another voter in ward No.10 of Vazhayila ward, in favour of the returned candidate. Since such voters were proved of having had cast double voting, the votes cast by them from the ward were treated as void and excluding of such votes, it was found that the respondent in the election petition had secured majority of two votes more than that of the revision petitioner (returned candidate). In arriving at that conclusion, the learned Munsiff declared the election of the revision CRP No.609/09 - 4 - petitioner as the returned candidate void and the respondent (petitioner in the election petition) was declared as the elected candidate from Ward No.10 Vazhayila Ward of Kudappanakkunnu Grama Panchayat. Challenge was raised against that decision by the revision petitioner filing an appeal as Election Appeal No.7 of 2007 before the District Judge, Thiruvananthapuram. The learned District Judge, after appreciating the materials and hearing the counsel on both sides, concurring with the views formed by the learned Munsiff, dismissed the appeal. Concurrent decision as above rendered by the two courts below holding that the election of the revision petitioner is void and declaring the respondent (petitioner in the election petition) as the elected candidate is challenged in the revision. 2. I heard the counsel on both sides. The one and only point canvassed by the learned counsel for the revision petitioner to assail the concurrent decision rendered by the two subordinate courts is built upon the default or omission of the respondent (petitioner in the election petition) in giving up the challenge as to double voting by two of the voters named in the election petition, who were also imputed of having cast double votes rendering the votes cast by them void. Giving up those two voters amounted to withdrawal of CRP No.609/09 - 5 - the ground canvassed for impeaching the election of the elected candidate in the petition and that goes against the spirit and ambit of Section 109 of the Kerala Panchayat Raj Act, 1994 is the submission of the learned counsel. Two of the voters, namely, Rajeswari and Krishnankutty Nair who were named among the 7 voters, who had been imputed of casting double voting in favour of the revision petitioner were not examined by the respondent and in fact, the case canvassed with respect to those two voters was given up during course of the trial of the election petition and that amounted to withdrawal or nonpressing of the ground canvassed challenging the election of the revision petitioner, is the argument advanced by the learned counsel to assail the concurrent decision entered by the two subordinate courts. Though some other grounds are also canvassed in the memorandum of revision, at the time of hearing, the only challenge pressed into service by the learned counsel for the revision petitioner to assail the order/judgment of the two subordinate courts is built upon the argument that the giving up of the two voters named as above amounted to an abandonment of a part of the ground set up to challenge the election and that was done flouting the mandate under Section 109 of the Kerala Panchayat Raj Act, 1994. CRP No.609/09 - 6 - 3. In order to appreciate the challenge raised by the learned counsel for the petitioner, it is necessary to examine the scope and ambit of Section 109 laying down the procedure for withdrawing the election petition. Section 109 of the Kerala Panchayat Raj Act, 1994 reads thus: Procedure for withdrawal of election petition : (1) If there are more petitioners than one, no application to withdraw an election petition shall be made except with the consent in writing of all the petitioners. (2) No application for withdrawal shall be granted if, in the opinion of the court and if the court is satisfied that such application has been induced by any bargain or consideration which ought not to be allowed. (3) (Not relevant and hence omitted). The argument of the learned counsel for the revision petitioner is that since two of the voters out of the seven voters named in the petition who are alleged to have cast double voting were not summoned and examined by the respondent that amounted to giving up a part of the ground canvassed for impeaching the election of the petitioner on the ground of double voting. There was thus an abandonment of a part of CRP No.609/09 - 7 - the ground canvassed to assail the election and since no permission was sought for from the court to give up the case set up in respect of the two voters, it should be deemed that the ground set up as a whole was given up. Reference is also made by the learned counsel to Section 108 of the Panchayat Raj Act to contend that withdrawal of an application can be made only with the leave of the court. Giving up the case canvassed with respect to two of the voters out of the seven voters named, in short, according to the counsel for the revision petitioner, amounts to withdrawal of the petition without the leave of the court or abandonment of the whole ground set up to challenge the election. There is no merit in the argument advanced by the learned counsel that nonexamination of two of the voters or rather giving up the case in respect of those two voters who were also alleged of having had cast double voting in favour of the revision petitioner amounted to abandonment of the case set up to assail the election of the returned candidate (revision petitioner). True, the respondent had a case that the election of the revision petitioner was vitiated by double voting cast by seven voters naming such voters with particulars in this election petition. She examined only five of them, but, not the remaining two to substantiate her case. Leaving CRP No.609/09 - 8 - two of the voters or giving up the case canvassed in respect of the two voters does not amount to withdrawal of her petition nor abandonment of the case canvassed that the election of the revision petitioner as the returned candidate was materially affected by the double voting cast by some of the voters in her favour. Sections 108 and 109 of the Panchayat Raj Act relate to the withdrawal of the election petition and the procedure to be followed thereof and it has no relevance or impact, least of all, in giving up one or other ground canvassed in the election petition to assail the election of the returned candidate. A petitioner to an election petition can raise all grounds available to challenge the election of the returned candidate and giving up one or other ground later in trial does not amount to withdrawal of the election petition or abandonment of his case as a whole. When that be the case with respect to a ground raised to challenge an election, nonexamination of two voters named among others who are alleged to have cast double voting has no consequence whatsoever. The only question to be considered is whether on the materials placed by examining the voters among those named who are alleged to have cast double voting whether the respondent (petitioner in the election petition) has succeeded in CRP No.609/09 - 9 - proving her case that on account of the double voting cast by such voters the result of the returned candidate was materially affected warranting a declaration for setting aside her election with the consequences that may follow thereof. On the materials placed in the case, both the courts below have come to the conclusion that of the five voters examined as P.W.3 to P.W.7, three had cast double voting in favour of the revision petitioner rendering the votes cast by them 'void', and such double voting had materially affected the result of the election declaring the revision petitioner as the returned candidate. She had won by a majority of two votes more than the returned candidate, and on account of the votes tendered in her favour by four out of the five voters, who had cast double voting to be void, the total valid votes cast in her favour was reduced to 257 votes, less than two votes polled in favour of the respondent who had secured 259 valid votes. When such be the case, the concurrent decision rendered by both the courts below that the election of the revision petitioner as the returned candidate was vitiated by double voting cast by some voters in her favour and it had materially affected the result the election is unimpeachable. The order passed by the learned Munsiff setting aside the election of the revision CRP No.609/09 - 10 - petitioner from ward No.10 Vazhayila ward of Kudappanakkunnu Grama Panchayat in view of the double voting by some voters in her favour materially affecting the result of her election as the returned candidate and declaring the respondent as the returned candidate as she had secured majority of the valid votes polled in such election, which was confirmed by the learned District Judge in appeal is fully supported by the materials tendered and the proved facts and circumstances presented in the case. Revision lacks merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE