IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 WP(C).No.35303 of 2008 (C) ---------------------------------- OP(EP).16/2005 of M.C., NEYYATTINKARA .................... PETITIONER: --------------- ASUNTHA MOHAN, AGED 45, D/O.VINCENT GORA, SACRED HEART HOUSE, PALLITHURA, VIZHINJAM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.G.S.REGHUNATH SRI.A.S.SHAMMY RAJ RESPONDENTS: ------------------ 1. ARUN MARY, AGED 35, D/O.ANTONY, THULA VILA VEEDU, KOTTAPPURAM P.O., VIZHINJAM, THIRUVANANTHAPURAM. 2. JAYARANI, D/O.DASAN, AGED 29 YEARS, THULA VILA VEEDU, KOTTAPPURAM P.O., VIZHINJAM, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT. (LOCAL SELF DEPARTMENT), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.VAKKOM N.VIJAYAN FOR R1 SMT.REEJA HARI FOR R1 SMT.V.RENJU FOR R1 SRI.P.ANIYAN FOR R1 SMT.M.A.RAMITHA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.35303 of 2008 (C) APPENDIX PETITIONER'S EXTS:- EXT. P1:- TRUE COPY OF THE ELECTION PETITION O.P. (ELECTION) NO.16/05 ON THE FILE OF THE M.C., NEYYATTINKARA. EXT.P2:- TRUE COPY OF THE WRITTEN STATEMENT IN O.P. (ELECTION) NO.16/05. EXT.P3:- TRUE COPY OF I.A.1077/07 IN O.P. (ELECTION) NO.16/05. EXT.P3(a):- TRUE COPY OF THE WITNESS SCHEDULE FILED ALONG WITH EXT.P3. EXT.P4:- TRUE COPY OF THE REPORT DT.27/10/08 OF JUNIOR SUPERINTENDENT, M.C., NEYYATTINKARA. EXT.P5:- TRUE COPY OF THE REPORT DT.30/10/08 OF THE JUNIOR SUPERINTENDENT, M.C., NEYYATTINKARA. EXT.P6:- TRUE COPY OF THE COMPARATIVE STATEMENT ON THE BASIS OF EXTS.P4 AND P5. .................... K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.35303 of 2008 ------------------------------------------------ Dated this the 2nd day of February, 2009 JUDGMENT Heard counsel on both sides. Petitioner is returned candidate from Ward No.16 of Vizhinjam panchayath. Her election was assailed by the first respondent filing O.P. (Ele).16/05. The main ground of attack against the returned candidate/petitioner was that there were several persons who exercised double votes in Ward No.16 as also in Pallithura (Ward No.18), in Karumpally Kara (Ward No.15), Kottappuram (Ward No.14), Kurisadi (Ward No.17) etc. List of such persons were annexed to the election petition as Annexure-A. The total number of persons who is alleged to have cast votes in two wards are altogether 19 in number. 2. It is submitted that from out of 19 persons who are alleged to have cast double W. P. C. No.35303 of 2008 -2- votes, 12 are cited as witness in Ext.P3(a) witness list filed by the first respondent, their serial numbers being 3, 5, 8, 12, 14, 16, 20, 24, 26, 28, 30, 34 respectively in Ext.P3(a) witness list. Apart from stating that those witnesses as also the other witnesses in the witness list are for giving oral evidence before court the specific purpose for which they are cited for examination is not mentioned in Ext.P3(a). However, it is submitted that on the request of the first respondent/the court below has ordered summons to the 12 witnesses made mention of as already stated for being examined as witnesses. The issuance of summons to those witnesses is what is assailed in this Writ Petition by the returned candidate. 3. It is vehemently contended before me by the counsel for the petitioner that the W. P. C. No.35303 of 2008 -3- question that is material for consideration is as to whether the 12 persons from out of 19 persons who are alleged to have cast double votes have actually cast double votes in two different wards inter alia the ward from which the petitioner was declared returned. For the purpose, the first thing to be done is to ascertain the identity of persons with reference to the voters list in the concerned wards to ascertain if the 12 out of the 19 persons who are summoned are having their names in the voters list in two wards as contended. If that is established, the next question for consideration will be as to whether that particular voter whose name is found in two wards as per the voters list have actually cast votes in both the wards. If they have not cast votes in both the wards where their names appear, it cannot be said that the W. P. C. No.35303 of 2008 -4- vote cast by them in Ward No.16 of Vizhinjam Panchayath of which we are presently concerned will be invalid votes. Without ascertaining as to whether those 12 persons to whom summons was ordered, appears from the records as persons having cast double votes, there is no meaning in summoning those witnesses. Consequently, therefore, as rightly urged by the counsel for the petitioner there was no necessity to straight away order summons to 12 witnesses whose serial numbers are mentioned supra as found in Ext.P3(a) witness list without ascertaining as to whether they have cast votes in both the wards where their names are alleged to have appeared as voters. 4. The learned counsel for the petitioner has also invited my attention to Exts.P4, P5 and P7 which are reports submitted by the junior superintendent of the Munsiff's Court, W. P. C. No.35303 of 2008 -5- Neyyattinkara and submits that he has prepared Ext.P6 with reference to those documents and that it can be seen thereupon that altogether only two persons have cast double votes as per Exts.P4 and P5 and one person has cast double vote as per Ext.P7 and that when that be the position, there is no purpose to be served by examining all 12 witnesses to whom summons was ordered. The submission no doubt is sound and has to be upheld. The court below shall first ascertain with reference to the voters list of the concerned wards as to whether any person mentioned in Annexure-A as Serial Nos.1 to 19 have cast double votes after ascertaining their identity as the same person from the two voters list complained of and shall issue summons only to such of the persons who appear to have cast double votes. W. P. C. No.35303 of 2008 -6- 5. With this direction, I dispose of this Writ Petition. Both parties shall be entitled to produce a copy of this judgment in the court below as expeditiously as possible to enable the court below to dispose of the election petition without delay. Issue copy of this judgment to the counsel on both sides urgently. K.P.BALACHANDRAN, JUDGE kns/-