IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 CRP.No. 298 of 2009() --------------------- AGAINST THE ORDER DATED 21/03/2004 IN IA 80(A)/09 IN OP(ELE).1/2005 of PRL.M.C.,NEYYATTINKARA .................... APPELLANT/PETITIONER: ----------------------------------------- J.RETNAMUTHU, S/O. JAMES, RESIDING AT CHRIST VILLA, CHEMBOOR,OTTASEKHARAMANGALAM.P.O., KEEZHAROOR VILLAGE, NEYYATTINKARA TALUK. BY ADV. MR.R.GOPAN RESPONDENT(S): RESPONDENTS: ----------------------------------------------------- 1. A.S.SAJIKUMAR, S/O. ANBRISE, KULAMVILAKOM VEEDU, CHEMBOOR DESOM, KEEZHAROOR VILLAGE. 2. ROBI, S/O. NESAN, VADAKKUMKARA VEEDU, CHEMBOOR DESOM, KEEZHAROOR VILLAGE. 3. SUDHEESH KUMAR, S/O. RAVEENDRAN NAIR, SUDHEESHBHAVAN, EDAVAL DESOM, KEEZHAROOR VILLAGE. 4. PUZHPA, RETURNING OFFICER,G.II, ARYANCODE GRAMA PANCHAYAT, ASSISTANT DIRECTOR OF SURVEY AND LAND RECORDS CENTRAL SURVEY OFFICE, VAZHUTHACAUD, TRIVANDRUM. R1 BY ADVS. MR.PIRAPPANCODE V.SREEDHARAN NAIR, MR.PIRAPPANCODE V.S.SUDHIR. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` C.R.P. No. 298 OF 2009 ```````````````````````````````````````````````````` Dated this the 8th day of July, 2009 O R D E R The revision is filed by the petitioner in OP(Election Petition) No.1/2005 on the file of the Munsiff Court, Neyyattinkara. He was one among the candidates, who contested the election from the 3rd Chambooru constituency to the G-11 Aryancode Grama Panchayat held on 24.9.2005. The 1st respondent in the petition was declared elected having secured the majority of votes. The other respondents in the petition are other candidates who contested the election in that constituency. While the petitioner secured 432 votes, the 1st respondent, the elected candidate, got 436 votes. The election of the 1st respondent was impeached on the ground that there was double voting by three persons and improper acceptance and illegal reception of ballots. The petitioner, after his evidence was over, moved an application for recounting of the votes, which was objected to by the 1st respondent. The learned Munsiff, after hearing both sides, dismissed that application, which is challenged in this revision. 2. I heard the counsel on both sides. The learned CRP.298/09 : 2 : counsel appearing for the petitioner assailed the order of the learned Munsiff contending that necessary particulars have been made out in the petition impeaching the election of the 1st respondent and also in his evidence and thereby he has made out a prima facie case for recounting of the votes. On the other hand, the learned counsel for the 1st respondent contended that the petition was filed impeaching his election in 2005 and the petition for recounting was moved at a belated stage that too after the evidence of the petitioner was over. It is further submitted that no objection was raised before the returning officer on the double voting or/on any of the objections canvassed nor any request made for recounting, and, so much so, the order passed by the learned Munsiff deserves only to be upheld. In Sadhu Singh Vs. Darshan Singh and another [2006 (6) SCC 255] the apex court has held what are the circumstances to be taken into account to consider whether a recounting has to be ordered. The test to be satisfied and the conditions to be followed are thus:- (i) prima facie case (ii) material facts must be pleaded stating irregularities in counting of votes (iii) a roving and fishing inquiry shall not be directed by way of an order for recounting of votes (iv) an objection to the said effect should be raised and (v) secrecy of CRP.298/09 : 3 : ballot papers should be maintained. In examining the merit of the application moved by the petitioner for recounting of the votes with reference to the above decision of the apex court, it is discernible that the application was filed at a highly belated time and also that he has not raised any objection before the returning officer for recounting of the votes. In evidence he has stated so is the case advanced for recounting. Mere plea in the petition or in evidence is not sufficient to dispense with the raising of objection before the returning officer at the appropriate time, after the counting is over, but before the declaration of the result. The learned counsel for the petitioner has handed over to me a copy of the election petition. After perusal of that petition also, I am not satisfied that any ground has been made for recounting of votes. After the evidence was recorded by moving an interlocutory application, the petitioner sought for recounting of the facts which was rightly negatived by the learned Munsiff. The revision is devoid of any merit and it is dismissed. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks