IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 CRP.No. 185 of 2010() --------------------- AS.47/2009 of DISTRICT COURT, MANJERI OP.45/2005 of MUNSIFF COURT, TIRUR .................... REVN. PETITIONER: (APPEALLANT/RESPONDENT): --------------------- KUNNATHADATHIL KUTTIHASSAN, S/O.AYAMU,PUTHUR AMSOM,CHERUKUNNU DESOM, P.O OTHUKKUNGAL,TIRURANGADI TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SMT.ANJU P.NAIR RESPONDENT: (RESPONDENT/PETITIONER) --------------- M.ABDUL KAREEM @ KUNHIPPA, S.O.MUHAMMEDKUTTY,PUTHUR AMSOM, CHERUKUNNU DESOM,P.O OTHUKKUNGAL, TIRURANGADI TALUK. ADV. SRI.SAJU.S.A THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No. 185 of 2010 --------------------------------------- Dated this 15th day of June, 2010 ORDER The returning officer declared petitioner as elected from ward No.11 of Othukkungal Grama Panchayath, in Malappuram District by a margin of 3 votes against his only rival, the respondent. Respondent was not satisfied with the manner in which some voters were permitted to exercise their franchise and the rejection of one postal ballot which was cast in his favour. Challenging the election mainly on the said illegalities respondent filed petition before the Election Tribunal (O.P.No.45 of 2005). The Election Tribunal vide order dated 21-11-2009 found illegality in the manner in which 3 voters were permitted to vote through their companions and in the rejection of one postal ballot cast in favour of respondent. The votes exercised by those voters through their companions were found to be in favour of petitioner and the same was rejected. The postal ballot found to be illegally rejected by the returning officer was found cast in favour of respondent. That vote was accepted. Accordingly respondent was declared elected by a margin of one vote. The order of the Election Tribunal was challenged by petitioner before learned District Judge, Manjeri in C.R.P.No.185 of 2010 : 2 : A.S.No. 47 of 2009 but, in vain. Judgment of learned District Judge is under challenge in this revision. Learned counsel for petitioner contends that finding of the courts below that there was illegality in 3 (three) voters being permitted to vote through companions is not sustainable. According to the learned counsel there are no sufficient pleadings in the petition to support the evidence brought in by the respondent and hence no reliance can be placed on such evidence. Reliance is placed on the decisions in Om Prabha Jain Vs. Abnash Chand & Another (AIR 1968 SC 1083) and Vijayaraghavan Vs. Girija Surendran (2002(1) KLT Case No.110). It is also the contention of learned counsel that there is no proper identity of the voters referred to in paragraph 4 of the petition and the persons examined by the Advocate Commissioner and referred to by PWs.13 and 14. It is also contended by the learned counsel that rejection of postal ballot contained in Ext.X1 is valid. At any rate the relevant documents are not brought into evidence in that those documents are not marked in evidence and hence cannot be relied on. Reliance is placed on the decision in Achuthananthan Vs. Francis (2001(1) KLT 740). Learned Senior Advocate appearing for respondent in response contended that there is sufficient evidence to show that 3 persons were permitted to exercise their franchise through companions illegally and against the mandate of Rule 36 of the C.R.P.No.185 of 2010 : 3 : Kerala Panchayath Raj (Conduct of Election) Rules (for short, “the Rules”). It is also contended that contention now advanced as to want of identity is not sustainable on account of intrinsic evidence on record and also since no such contention was raised in any of the courts below. It is the further contention of learned Senior Advocate that the postal ballot was rejected by the returning officer without any valid reason and courts below are right in concluding that respondent has won by a margin of one vote. 2. It is not disputed that petitioner was declared elected by the returning officer from the ward in question by a majority of three (3) votes. Several grounds are set up in the petition in challenge of the election. But, in the evidence, allegations are confined to allowing three persons to vote through companions and rejection of one postal ballot. Averments concerning the above grounds are set forth in paragraph 4, 5 and 12 of the election petition. 3. In paragraph 4 of the election petition it is stated that Abdul Gafoor and Abdul Rahiman of Kunnathadathil house (serial Nos.490 and 492 respectively, in Ext.A2, voters list) are mentally retarded persons incapable of making a free decision of their own as to their choice of candidate at the election but against the mandate of Rule 36 of the Rules their votes were allowed to be cast through their companions who were active workers of the political party to C.R.P.No.185 of 2010 : 4 : which petitioner belonged. Their votes cannot be reckoned for the purpose of deciding the winner at the election. In paragraph 5 of the election petition it is contended that Kunnathadathil Gafoor, serial No.490 in Ext.A2 though physically handicapped, had no incapacity to identify the symbol and mark the symbol on his own, he did not require the assistance of a companion as provided in Rule 36 of the Rules but his companion was permitted to cast the vote which is illegal. In paragraph 12 of the election petition averments concerned alleged illegal rejection of one postal ballot which was otherwise cast in his favour. Petitioner denied the allegations. So far as allegations in paragraph 4 of the petition regarding Abdul Gafoor and Abdul Rahiman of Kunnathadathil house is concerned, petitioner while admitting that the said persons were allowed to vote through companions denied that they were mentally unsound so as to be not able to decide on their own about their choice of candidate. Hence the returning officer has not committing any illegality in permitting the said persons to vote through their companions. So far as averment in paragraph 5 of the election petition is concerned, it is contended by petitioner that Kunnathadathil Gafoor was in such a physical condition that he could not exercise his vote except with the assistance of a companion and hence there is nothing illegal in permitting him to vote with the assistance of a companion. When it C.R.P.No.185 of 2010 : 5 : came to the alleged rejection of postal ballot it is contended that postal ballot was not in accordance with the relevant rules and that the cover in form No.19 referred to a different booth and ward number and hence the returning officer was justified in rejecting the same. 4. I have referred to the rival contentions concerning companion voting of Abdul Gafoor and Abdul Rahiman of “Kunnathadathil house”. PW14 is the father of Abdul Gafoor and Abdul Rahiman. PW13 was the Medical Officer of Primary Health Centre, Kottakkal and he issued Exts.A7 and A8, certificates relating to the mental condition of Abdul Gafoor and Abdul Rahiman (I will be referring to the contention of learned counsel for petitioner about identity of the said persons a bit later). Evidence of PW14 shows that his sons, Abdul Gafoor and Abdul Rahiman are suffering from congenital mental retardation. PW13 had occasion to examine the said persons. He is acquainted with the said persons and PW14 for quite sometime. PW13, after examination of the said Abdul Gafoor and Abdul Rahiman issued Exts.A7 and A8 certifying that Abdul Gafoor is suffering from mental retardation by 50% and Abdul Rahiman is suffering from the same illness by 45%. The Advocate Commissioner who conducted a voir dire examination of the said Abdul Gafoor and Abdul Rahiman as per order of the Election C.R.P.No.185 of 2010 : 6 : Tribunal has concluded and reported that the said persons are mentally retarded and are not able to take decision of their own. Thus, it is with reference to the said evidence of PWs.13 and 14, Exts.A7 and A8 and the report of the Advocate Commissioner that courts below came to the conclusion that Abdul Gafoor and Abdul Rahiman are mentally retarded congenitally and on account of that were unable to take a decision of their own. 5. Then the next question is whether the returning officer is legally correct in permitting them to vote through companions. PW.14 exercised the vote for Abdul Rahiman as companion while Noushad, a nephew of PW14 voted as companion for Abdul Gafoor. Under Rule 36 of the Rules, provision is made for companion voting. The provision says, “if the Presiding Officer is satisfied that owing to blindness or other physical infirmity an elector is unable to recognize 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 in accordance with his wishes, and if necessary, for folding the ballot paper so as to conceal the vote and inserting it into the ballot box”. C.R.P.No.185 of 2010 : 7 : (emphasis supplied) Going by Rule 36, it leaves me in no doubt that grant of permission for companion voting is permissible only when the Presiding Officer is satisfied that due to blindness or other physical infirmity an elector is unable to recognize the symbols or make a mark thereon in accordance with his wishes. The Rule also makes it abundantly clear that the companion is to vote on behalf of the elector and in accordance with the wishes of the elector. Rule 36 contemplates that the elector who is permitted to have companion voting must be able to form and express his wish as to the choice of the candidate but on account of blindness or other physical infirmity is unable to recognize the symbols or to make a mark on it. Rule 36 does not take in a case where on account of insanity, mental retardation or for any other reason the elector is unable to form or express his own wish as to the candidate for him he wishes to vote. If such an interpretation is accepted it would mean that the vote of a mentally retarded or insane person is being cast not by the said elector but the companion concerned as the latter wishes. He is not carrying out the wish of the elector concerned. In short, it is not a case of the elector concerned voting. That is not the purport of Rule 36 of the Rules. No doubt, under Section 17 (1(b)) of the Kerala Panchayat Raj Act (for short, “the Act”) a person shall be disqualified for C.R.P.No.185 of 2010 : 8 : registration in an electoral roll only if he is of unsound mind and stands so declared by a competent court. In this case there is no contention for any of the parties that any competent court has declared Abdul Gafoor and/or Abdul Rahiman as persons of unsound mind. That only meant that the said persons were eligible or qualified for registration in the electoral roll but, did not mean that they came within the purview of Rule 36 for the purpose of companion voting. Evidence on record as I stated above and the courts below concurrently held is that on account of congenital mental retardation of Abdul Gafoor and Abdul Rahiman were not able to form or express their wish as to the candidate to whom they wanted to exercise their vote. In that situation Rule 36 of the Rules had no application and the Presiding Officer could not legally permit the said persons to vote through their companions. Finding of the courts below that permission granted for companion voting for Abdul Gafoor and Abdul Rahiman is contrary to Rule 36 of the Rules and hence is illegal does not call for interference on facts or in law. 6. The more forcible argument advanced by the learned counsel for petitioner is that there is no proper identity of voters under Sl. Nos.490 and 492 of Ext.A2 referred to in the election petition. With Abdul Gafoor and Abdul Rahiman referred to in the evidence of Pws.13 and 14 and Exts.A7 and A8, who are Sl.Nos.542 C.R.P.No.185 of 2010 : 9 : and 543 of Ext.A2. According to the learned counsel, in paragraph 4 of the election petition what is averred is that serial Nos.490 and 492, 'Abdul Gafoor and Abdul Rahiman of Kunnathadathil' are not of sound mind, could not have exercised their votes and the Presiding Officer was not legally correct in permitting them to have companion voting but, the evidence brought in is in respect of Sl. Nos.542 and 543 (Abdul Gafoor and Abdul Rahiman of Kunnakkaden house) who are not proved to be serial Nos.490 and 492 referred to in the election petition. There is no proof of identity as regards the persons referred to in paragraph 4 of the election petition as serial Nos.490 and 492 and the persons referred to in the evidence ;of Pws.13 and 14 and Exts.A7 and A8. 7. The argument sounds attractive and requires consideration. Nowhere in the election petition it is stated that Abdul Gafoor and Abdul Rahiman referred to in paragraph 4 of the petition are 'serial Nos.542 and 543' in Ext.A2 or belong to 'Kunnakkaden house'. Instead averments in paragraph 4 relate to Abdul Gafoor and Abdul Rahiman (Sl. Nos.490 and 492 in Ext.A2) of 'Kunnathadathil house'. The question is whether it is the very same electors described as serial Nos.490 and 492 who are examined by the Advocate Commissioner referred to in Exts.A7 and A8 and regarding whom PWs.13 and 14 have given evidence. It is seen from C.R.P.No.185 of 2010 : 10 : the records that to examine Abdul Gafoor and Abdul Rahiman of 'Kunnathadathil house' (Sl. Nos.490 and 492 in Ext.A2) respondent had taken out summons vide order on I.A.No.1955 of 2005 but that summons was returned with the endorsement that Abdul Gafoor and Abdul Rahiman refused to accept the summons stating that they are not residing in 'Kunnathadathil house' (as stated in Sl. Nos.490 and 492 of Ext.A2) but are 'Kunnakadan Abdul Gafoor and Abdul Rahiman' (as stated in Sl.Nos.542 and 543 of Ext.A2). Following that, respondent filed I.A.No.143 of 2007 to issue summons to the said persons in the house name of “Kunnakadan” (as described in serial Nos.542 and 543 of Ext.A2). That application was rejected by the Election Tribunal observing that there is no foundation to that effect in the election petition. Respondent challenged that order in this court in W.P.C.No.4824 of 2007. That writ petition was allowed by this court observing that respondent is at liberty to take summons to the said persons (in the house name 'Kunnakkaden'). Accordingly summons was issued to the said persons. It is the said persons who were examined by the Advocate Commissioner. It is pertinent to note from the averments in paragraph 2 of the affidavit in support of I.A.No.143 of 2007 that it is stated that Abdul Gafoor and Abdul Rahiman (serial Nos.490 and 492 of Ext.A2) also have vote (in the same booth) as serial Nos.542 and 543 of Ext.A2. In the counter C.R.P.No.185 of 2010 : 11 : statement filed by petitioner in response to the said affidavit there is no denial of the statement that Abdul Gafoor and Abdul Rahiman (voter Nos.490 and 492) do have vote as serial Nos.542 and 543 also. Instead, what is contended in paragraph 2 of the counter statement is that the application (I.A.No.143 of 2007) is filed to receive a list of witnesses - Kunnakadan Abdul Gafoor and Abdul Rahiman (who are voter Nos.542 and 543 in Ext.A2) and that there is no allegation against the said voters and hence they need not be summoned as witnesses. The identity referred to in paragraph 2 of the affidavit in support of I.A.No.143 of 2007 was not disputed by petitioner in his counter statement. 8. PW.14 denied that he has a house name as 'Kunnathadathil' and asserted that he is 'Kunnakadan' Moideenkutty. He deposed that his house No. is 340. As per his evidence in the said house, along with him his two sons, Abdul Gafoor and Abdul Rahiman, wife, Pathumma and daughter, Ami were residing. He stated that he has no other house in any other house number. It is interesting to note that in Ext.A2, serial Nos.488 to 492 are “Kunnathadathil” Moideenkutty, his wife Pathumma, sons, Abdul Gafoor and Abdul Rahiman and daughter, Ami. When it came to serial Nos.540 to 543 (in Ext.A2), it refers to “Kunnakadan” Moideenkutty, wife, Pathumma and sons, Abdul Gafoor and Abdul C.R.P.No.185 of 2010 : 12 : Rahiman. There is no difference in the name of father of Moideenkutty (there is however, slight difference in the age of the electors). There is no mention of daughter, Ami in serial Nos.540 to 543. I find that though there is difference in the house number, house name and some difference in the age of persons described in serial Nos.488 to 492 and serial Nos.540 to 543, the name of electors given are the same. A further fact to be noted from the report of Advocate Commissioner is that the Commissioner examined “Kunnakadan” Abdul Gafoor and Abdul Rahiman in “their house bearing door Nos.301”. It is also seen from the report of Advocate Commissioner that he had issued notice to the counsel on both sides scheduling examination of the said persons “at their house bearing door No.301”. There was no objection to the examination of the said persons “in their house bearing door No.301”. On the other hand the deposition of the said witnesses recorded by the Advocate Commissioner are counter signed by counsel on both sides. Thus there is intrinsic evidence from the report of the Advocate Commissioner which is not challenged that Abdul Gafoor and Abdul Rahiman who were examined by the Advocate Commissioner are residents of the house bearing door No.301. It is seen from Ext.A2 that in serial Nos.488 to 492, the new house number is given as '301' along with house No.340. In serial Nos.540 to 543 the house C.R.P.No.185 of 2010 : 13 : numbers given are 323, 478 and '340'. In other words in Ext.A2, for serial Nos.488 to 492 and 540 to 543, a common door number is given as “340”. PW14 claimed that his house No. is '340'. I stated that for serial Nos.488 to 492 a new house number is given as “301” ie, in respect of Kunnathadathil Moideenkutty, his sons Abdul Gafoor and Abdul Rahiman, wife Pathumma and daughter, Ami. Thus it is clear from Ext.A2 that PW14 and his sons Abdul Gafoor and Abdul Rahiman were residing in house No.301 (which also has door No.340) at the relevant time. It is that house number which the Advocate Commissioner has described in his report as door number 301 in which witnesses, Abdul Gafoor and Abdul Rahiman are residing. Thus, it is clear that it is the very same persons referred to as serial Nos.490 and 492 who were examined by the Advocate Commissioner though, their name appeared in the very same voters list (Ext.A2) under serial Nos.542 and 543 as well. That is what the respondent has stated in paragraph No.2 of his affidavit in support of I.A.No.143 of 2007 (to issue summons to the said persons) and which I said, was not disputed in the counter statement of petitioner. 9. I must also bear in mind, as the learned Senior Advocate appearing for respondent has argued that no contention regarding identity of said persons (between serial Nos.490 and 492 and 542 and 543) was raised before the learned District Judge as revealed C.R.P.No.185 of 2010 : 14 : from the memorandum of appeal. No such contention is seen raised in the Election Tribunal also. In the circumstances I am not impressed by the contention advanced by the learned counsel (for the first time in the revision petition) that there is dispute regarding identity which has been not addressed by the courts below or that the identity is not established. 10. So far as contention regarding lack of pleadings is concerned that is concerning identity of serial Nos.490 and 492 and serial Nos.542 and 543. The decisions relied on by the learned counsel for petitioner involved cases where allegations which ultimately affected the validity of election (grounds set up) were not pleaded in the and it was held that in the absence of specific plea, evidence cannot be looked into. It is the case of respondent that Abdul Gafoor and Abdul Rahiman who belonged to Kunnathadathil house are serial Nos.490 and 492 in Ext.A2 but when the summons was not accepted by them, respondent learned that names of the same persons figure in Ext.A2, voters list as serial Nos.542 and 543 also in which address summons was issued as permitted by this court and the said elector were examined by the Advocate Commissioner. As such, it is not a case of lack of pleadings as learned counsel for petitioner puts it. Thus, it is on record that Abdul Gafoor and Abdul Rahiman referred to in the petition were mentally retarded, were not C.R.P.No.185 of 2010 : 15 : able to form or express their own wish as to the candidate to whom they should exercise their vote through companions and hence permission granted for companion voting was against rule 36 of the Rules. I find little reason to interfere with the said finding. 11. Then comes the case of Kunnathadathil Gafoor, examined as PW7. It is not disputed that he was permitted to vote through a companion. There is no dispute that PW1 is physically handicapped but the question is whether his physical disability is such that the Presiding Officer was justified in permitting companion voting for him. There is no case or evidence that PW7 had any blindness or mental incapacity which disabled him from recognizing the symbols on the ballot paper or making a mark on it. Evidence of PW7 shows that he was running a telephone booth and was riding a three wheeler (scooter) during the relevant time. He was physically carried to the booth by the companion and the companion was permitted to exercise his vote. But evidence is that PW7 had no difficulty to recognize the symbols on the ballot paper and make a mark on it on his own. His physical disability was only for walking. It is seen from the deposition of PW.7 that he has put his signature on each page. It is evident that PW7could have recognized the symbols on the ballot paper and made a mark on it on his own without the assistance of any companion, once he was brought into the polling booth. C.R.P.No.185 of 2010 : 16 : Assistance was required only to take down to the polling booth. Rule 36 of the Rules therefore had no application in the case of PW7. Hence permitting PW7 to vote through companion was against Rule 36 and hence illegal. Courts below found that procedure adopted by the Presiding Officer in that regard is illegal. I have no reason to disagree. 12. What remained is the validity of rejection of the postal ballot. The Presiding Officer rejected that postal ballot for the reason that the outer cover in form No.19 (marked Ext.X1) contained a different endorsement regarding ward number. It is not disputed that the ward in question is ward No.11 (of Othukkungal Grama Panchayath) and the booth name is 'Valiyaparamba'. On the outer side of cover in form No.19 the ward number stated is 'No.12' but the booth name is written correctly as 'Valiyaparamba'. Rule 50 of the Rules speaks about postal ballot. That provision says that Presiding Officer shall before commencement of counting of ballot papers in the ballot box deal with the postal ballot papers in the manner provided therein. As per sub rule (c) if the