IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 OP(C).No. 2433 of 2011(O) ------------------------------------- OPEP.18/2010 of M.C.,VADAKKANCHERRY .................... PETITIONER (S): ----------------------- BINDHU @ BINDHU SURESHKUMAR, AGED 32, THEKKECHOLAYIL VEEDU, PANJAL P.O. AND VILLAGE, THALAPPILLY TALUK, THRISSUR. BY ADV. SRI.P.C.SASIDHARAN SMT.K.S.KARUNAMOL RESPONDENT(S): ------------------------- 1. VRINDA RADHAKRISHNAN, AGED 39, W/O.RADHAKRISHNAN, KUNNINMEL VEEDU, PANJAL P.O. AND VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT-680582. 2. PRABHAVATHY, AGED 42, AMMATHUVALAPPIL VEEDU, P.O.ATTOOR, PANJAL VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT-680582. R1 BY ADV. SRI.T.RAJASEKHARAN NAIR THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OPC NO.2433/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ELECTION PETITION PREFERRED BY THE IST RESPONDENT. P2:- COPY OF THE OBJECTION FILED BY THE PETITIONER. P3:- COPY OF THE ORDER FRAMING ISSUED IN THE ELECTION PETITION. P4:- COPY OF THE IA. NO.1202/2011 FILED BY THE IST RESPONDENT. P5:- COPY OF THE OBJECITON PREFERRED BY THE PETITIONER TO IA. 1202/2011. P6:- COPY OF THE ORDER ISSUED BY THE MUNSIFF COURT, WADAKKANCHERY DTD. 5.7.2011. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2433 of 2011 ==================================== Dated this the 09th day of November, 2011 J U D G M E N T This petition is in challenge of Ext.P6, order dated 05.07.2011 in O.P(El.) No.18 of 2010 of the court of learned Munsiff, Wadakkancherry. By the impugned order on Ext.P4, application filed by the first respondent learned Munsiff directed the Electoral Officer to produce the documents specified in Ext.P4, application. 2. The issue arises in an election petition preferred by the first respondent challenging election of petitioner from Ward No.XIII of Panajal Grama Panchayath in the election held on 25.10.2010. It is not disputed that as per the declared result, petitioner got 334 votes as against 328 votes secured by the first respondent. Second respondent got 217 votes. Seventeen (17) votes were declared invalid. In paragraph 2 of Ext.P1, election petition first respondent stated that in the course of counting on account of the biased attitude of the counting officials, four votes which ought to have been counted in favour of the first respondent were counted in favour of petitioner and two votes which ought O.P(C) No.2433 of 2011 -: 2 :- to have been counted in favour of the first respondent were counted in favour of the second respondent. It is further alleged that one vote of the first respondent which was valid was improperly rejected as invalid. If counting officials had acted in a fair manner, the above seven votes should have been counted in favour of the first respondent and herself declared elected. First respondent prayed that election of petitioner from Ward No.XIII of Panjal Grama Panchyat be declared invalid and that herself be declared elected. Petitioner filed counter to Ext.P1, election petition denying various allegations in the election petition. While so, the first respondent filed Ext.P4, application to direct the Electoral Officer to produce the documents referred to therein. That application was objected by petitioner but the objections were overruled and the application was allowed by Ext.P6, order which is under challenge. 3. Learned counsel for petitioner contends that Ext.P6, order is prima facie illegal and unsustainable. It is contended that there is no prayer for recounting of votes, not to say that any issue regarding recounting is framed by the learned Munsiff (Ext.P3 are the issues framed by learned Munsiff). It is also contended that right to challenge the election is the conferment O.P(C) No.2433 of 2011 -: 3 :- of statute and hence it must be in strict compliance with the provisions of the statute. A mere allegation regarding improper counting of votes is not sufficient to enable the Election Tribunal to call for the records and examine the same. There must be prima facie proof regarding the truth of allegations made in the petition. It is also necessary that there must be specific allegations in the election petition concerning invalidity of counting or improper rejection of votes. In the absence of such specific allegations and prima facie evidence regarding truth of allegations the Election Tribunal is not authorized or entitled to pass orders like Ext.P6. Learned counsel placed reliance on the decisions in P.K.K.Shamsudeen v. K.A.M. Mappillai Mohindeen ([1989] 1 SCC 526), Makhan Lal Bangal v. Manas Bhunia ([2001] 2 SCC 652) and Kattinokkula Muralikrishna v. Veeramalla Kotewsara Rao ([2010] 1 SCC 466). 4. In response it is contended by the learned counsel for first respondent that secrecy in the election must give way to purity at election. It is contended that there are sufficient allegations in the election petition which would warrant a O.P(C) No.2433 of 2011 -: 4 :- recounting and inspection of votes as requested by first respondent in Ext.P1, election petition. Learned counsel has referred me to the various averments in Ext.P1, election petition. It is contended that in view of specific allegations made in Ext.P1, election petition the mere fact that in the relief portion there is no prayer for recounting or that no issue regarding recounting is framed does not prevent the learned Munsiff from passing order like Ext.P6. Learned counsel has placed reliance on the decisions in Shashi Bhushan v. Prof. Balraj Kadhok (1972 KHC 724), Sunil Kumar v. K.Sudhakaran (1992 KHC 266) and Prabhakaran v. Sundaran Nair (2002 KHC 1012). 5. In P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen the issue decided was, when recounting is to be ordered. It would appear that in that case recounting was ordered by the Election Tribunal as there was no serious objection from the opposite side and as recounting would not prejudice the opposite side. The Supreme Court dealt with the issue in paragraph 10 where the decision in Dr.Jagjit Singh v. Giani Kartar Singh (AIR 1966 SC 773) is quoted with approval. In the O.P(C) No.2433 of 2011 -: 5 :- said case it was held that in a proper case, the Tribunal can order inspection of ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising that power, the Tribunal has to bear in mind certain important considerations. Reference was made to the relevant provisions of the Representation of Peoples Act, 1951 which required that an election petition shall contain a concise statement of material facts on which petitioner relied and in every case where a prayer is made by a petitioner for inspection of ballot boxes, the Tribunal must enquire whether the application made by petitioner in that behalf contains a concise statement of material facts on which he relies. Vague or general allegations that valid votes were improperly rejected or invalid votes were improperly accepted would not serve the purpose which Secs.83(1)(a) of the R.P. Act (as involved in that case) has in mind. In dealing with this question, the importance of secrecy of ballot papers could not be ignored and it is always to be borne in mind that the statutory rules framed under the R.P. Act are intended to provide adequate safeguard for examination of validity or invalidity of votes and for their proper counting. O.P(C) No.2433 of 2011 -: 6 :- 6. In Makhan Lal Bangal v. Manas Bhunia allegations pertained to the corrupt practice at the election. Importance of framing of issues was dealt with. Reference to Order XIV of the Code of Civil Procedure, 1908 (for short, “the Code”) was made. In paragraph 19 it is held that an election petition is like a civil trial, the stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which trial shall proceed excluding diversions and departures therefrom. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting pleadings of parties pinpoints into issues, the disputes on which the two sides differ. The correct decision of the civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order XIV of the Code dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by other. Each material proposition affirmed by one party ad denied by other should form the subject of a distinct issue. 7. In Kattinokkula Muralikrishna v. O.P(C) No.2433 of 2011 -: 7 :- Veeramalla Kotewsara Rao, in paragraph 17, the decision in Suresh Prasad Yadav v. Jai Prakash Mishra ([1975] 4 SCC 822]) is quoted. Summarising the principles laid down by the Supreme Court from time to time in granting prayer for inspection of ballot papers and/or recounting it was held in Suresh Prasad Yadav v. Jai Prakash Mishra that an order for inspection and recount of ballot papers cannot be made as a matter of the course. The reason is twofold. Firstly, such an order affects secrecy of ballot which under the law is not to be lightly disturbed. Secondly, the Rules provide an elaborate procedure for counting of ballot papers. That procedure contains so many statutory checks and effective safeguards against mistakes and fraud in counting that it can be called almost trickery foolproof. The following guidelines were also prescribed by the Supreme Court in Suresh Prasad Yadav v. Jai Prakash Mishra viz., to justify a recount, election petition should contain adequate statement of all material facts on which allegations of irregularity or illegality in counting are founded; that on the basis of evidence adduced such allegations are prima facie established affording a good ground for believing that there has been a mistake in counting and the court trying the petition is prima O.P(C) No.2433 of 2011 -: 8 :- facie satisfied that making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. In paragraph 25 (in Kattinokkula Muralikrishna v. Veeramalla Kotewsara Rao) it is held that it needs to be emphasised having regard to the consequences emanating from the direction of recounting, which may even breach the secrecy of ballot, doctrine of prejudice in an irrelevant factor for ordering recount. It is further held that a narrow margin of votes between the returned candidate and the election petitioner does not per se give rise to a presumption that there has been an irregularity or illegality in the counting of votes. 8. Learned counsel has also brought my attention to Rule 51 of Kerala Panchayath Raj (Conduct of Election) Rules (for short, “the Rules”) which deals with recount of votes. Sub-rule (2) requires that after the announcement of the members (under sub-rule ([1]) a candidate or in his absent his election agent may apply in writing to the Returning Officer to recount the ballot papers either wholly or in part stating the reasons for such recounting. 9. Shashi Bhushan v. Prof.Balraj Madhok and Others (1972 KHC 724) was a case involving alleged O.P(C) No.2433 of 2011 -: 9 :- rigging of the election process by chemical treatment of ballot papers. The Supreme Court held that such acts would pose a challenge to the integrity and impartiality of the Election Commission and that even if the allegation is nothing but a propaganda stunt, it is in public interest that falsity of that propaganda is exposed. In paragraph 18, it is held so far as inspection of ballot papers ordered by the learned trial Judge is concerned, that a general inspection should not be permitted until there is satisfactory proof in support of those allegations. For finding out whether there is any basis for those allegations it would be sufficient if some ballot papers, say, about 600 out of those polled by each of the returned candidates are selected from different bundles or tins in such a way as to get a true picture (regarding the allegation of rigging of the election process by chemical treatment of ballot papers). 10. In Sunil Kumar and Others v. K.Sudhakaran and Others (1992 KHC 266) challenge to the election was on the ground of double voting. It was held that the principle regarding secrecy of votes must give way to purity at election. In that case, in view of circumstances of the case it was found that it is necessary to peruse the ballot papers under O.P(C) No.2433 of 2011 -: 10 :- challenge. 11. In Prabhakaran v. Sreedharan Nair (2002 KHC 1012) the issue concerned recounting of votes. There, it was held that in the ends of larger interest and to secure purity of voting, inspection was necessary with regard to counterfoils of used ballot papers and marked copy of electoral rolls (where also the issue raised was double voting at the election). 12. Now with the above position of law on the background I shall refer to the allegations made in Ext.P1, election petition and correctness of the impugned order. I referred to paragraph 2 of the election petition where there is reference to the fault (either intentional or otherwise) committed in the recounting which resulted in four votes cast in favour of the first respondent being counted in favour of the petitioner and two votes cast in favour of first respondent being counted in favour of second respondent. It is further alleged that one vote cast in favour of first respondent was improperly rejected. In paragraph 9 of Ext.P1, election petition it is stated that immediately after counting was over, the first respondent and her chief election agent had requested the Returning Officer in writing for a recounting (as Rule 51 (2) of the Rules would say) but that was O.P(C) No.2433 of 2011 -: 11 :- rejected by the Returning Officer. In paragraph 11, it is alleged that in the above circumstances it is necessary that the court directs a recounting of the votes, set aside the election of petitioner and declare the first respondent elected. Paragraph 12 of the election petition contains the statement that having regard to the circumstances stated in the election petition it is within the power of the court on being satisfied of the allegations made in the petition to order a recounting of votes. With the above allegations made in Ext.P1, election petition first respondent prayed that election of petitioner be declared invalid and that first respondent be declared elected. 13. No doubt, the above allegations made in the election petition are stoutly denied by petitioner in the written statement. Learned Munsiff has framed the following issues: “Whether the respondent, or her election agent or any other person with their consent has committed any corrupt practice in the election? Whether the petitioner has complied with the mandatory requirements under Sections 89 or 90 or O.P(C) No.2433 of 2011 -: 12 :- 115 of the Kerala Panchayath Raj Act? Whether she is entitled to be declared elected”. 14. Referring to the decision in Makhan Lal Bangal v. Manas Bhunia learned counsel for petitioner asserted the necessity for framing an issue regarding recounting of votes which as seen from Ext.P3, learned Munsiff has not been framed. But I must bear in mind that on the allegations made in the election petition the gist of which I have already stated above, first respondent prayed that election of petitioner be declared invalid and first respondent may be declared elected. Going by the averments in the election petition it appears to me that election of petitioner is challenged on two grounds; improper counting of votes which resulted in six votes which ought to have been counted in favour of the first respondent being counted either in favour of petitioner or the second respondent, and secondly, that there was improper rejection of one vote cast in favour of the first respondent. It is therefore that in the election petition first respondent prayed that there be a recounting of votes by the O.P(C) No.2433 of 2011 -: 13 :- court of course on being satisfied of the truth of the allegations and accordingly it is prayed that election of petitioner be set aside and first respondent be declared elected. 15. There could be no doubt that the court is required to frame an issue when a material proposition of fact or or law as asserted by one party and denied by the opposite party. So far as election law is concerned the necessity to frame issue may be still more stricter as compared to the general law. But in this proceeding I need not go into the question whether learned Munsiff is required to frame an issue regarding recounting of votes. For, it is open to the learned Munsiff in the course of proceeding to frame additional issues if found necessary. Nor am I impressed by the contention that because, there is no prayer in the election petition that there should be a recounting, a recounting of the votes is not possible. For, it is not the relief portion which governs the proceeding of the court. I referred to the gist of allegations made in the election petition where various circumstances which led to the first respondent pleading that the court may recount/inspect the votes are mentioned. Hence the contention that in the absence of a prayer in the relief portion for recounting there is no power for the court to O.P(C) No.2433 of 2011 -: 14 :- order recounting cannot be accepted. 16. Now coming to the question whether at this stage learned Munsiff was correct in passing Ext.P6, order having regard to the various decisions which have been referred to me, I am inclined to accept the argument of petitioner. For, it is when there is prima facie evidence of truth of the allegations requiring recounting/inspection that court is required to order recounting/inspection of votes. That has been stated in Kattinokkula Muralikrishna v. Veeramalla Kotewsara Rao referred above. There, in paragraph 17 it is held that it is within the power of the court to order recounting/inspection of ballot papers where on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting. Therefore it is only when there is material on record from which the Election Tribunal could prima facie be satisfied that there is good ground for believing that there has been a mistake in counting or in the matter of alleged improper rejection of votes that a recounting/inspection of the votes is to be ordered. That stage admittedly has not reached as this case is concerned in that admittedly no evidence has been let in by the O.P(C) No.2433 of 2011 -: 15 :- parties. Viewed in that line, Ext.P6, order cannot be sustained. But I make it clear that if as laid down by the Supreme Court in Kattinokkula Muralikrishna v. Veeramalla Kotewsara Rao sufficient materials are brought on record from which the court could prima facie be satisfied that recounting/inspection of votes is required, it will be open to the learned Munsiff to resort to that course. The question whether on the averments in the election petition as denied by petitioner in his counter, an issue as to whether recounting/inspection is required, is left to the decision of learned Munsiff. Resultantly, Original Petition is allowed. Exhibit P6, order is set aside. Learned Munsiff is directed to dispose of Ext.P4, application in the light of the observations made and the decisions referred above. The Electoral Officer is directed to keep in safe custody the relevant documents referred in Ext.P4, application until further directions are received from the learned Munsiff in that regard. THOMAS P. JOSEPH, JUDGE. vsv