IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 CRP.No. 1103 of 2007() --------------------------------- (AGAINST THE judgment DTD. 18/09/2007 IN CMA NO.33/2006 OF DISTRICT COURT, KASARAGOD DATED 29/08/2006 IN O.P.NO.7/2005 (ELECTION) OF MUNSIFF'S COURT, KASARAGOD) ..... REVISION PETITIONER: (APPELLANT/RESPONDENT): ------------------------------------------------------------------------------- ABDULLA HAJI, S/O MOOSA, PAIVALIKE HOUSE, PAIVALIKE VILLAGE, PAIVALIKE POST, KASARAGOD TALUK, KASARAGOD DISTRICT. BY ADV. SRI.K.JAYAKUMAR RESPONDENT: (RESPONDENT/PETITIONER): -------------------------------------------------------------------- MOHAMMED, S/O MOIDEENKUTTY HAJI, RESIDING AT PARERI HOUSE, PAIVALIKE VILLAGE, PAIVALIKE POST, KASARAGOD TALUK, KASARAGOD DISTRICT. BY SRI.KODOTH SREEDHARAN FOR CAVEATOR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/08/2008 ALONG WITH WPC.NO.33438 OF 2007, THE COURT ON 4/09/2008 PASSED THE FOLLOWING: Kss ORDER ON I.A.NO.3146/07 IN C.R.P.NO.1103/2007 DISMISSED 21/08/2008 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss M.Sasidharan Nambiar,J. ======================= C.R.P No.1103/2007 & W.P.(C) No.33438 of 2007 ======================= Dated this the 4th day of September, 2008 O R D E R Whether the election of a returned candidate to the Grama Panchayat can be set aside under section 102(1)(d)(iii) of Kerala Panchayat Raj Act,1994 without establishing that acceptance of void votes materially affected the result of his election? 2. The revision petitioner was declared elected to Ward No.XVI of Paivalike Grama Panchayat in the election held on 26.9.2005. The respondent in the revision petition, who is the petitioner in the Writ Petition, was the only other candidate in the election. The returned candidate secured 562 votes and respondent 556 votes. 53 votes were declared invalid. Respondent filed Election O.P.No.7/2005 before Munsiff Court, Kasaragod under section 102(1)(d)(iii) of the Kerala Panchayat Raj Act contending that there were double voting in C.R.P.No.1103/07 & W.P.(C) 33438/07 2 favour of the returned candidate. It was contended that son of the respondent who was examined as PW6 was registered in the same Ward twice and had also voted twice and both the votes are void. It was also contended that all the persons shown in the A schedule to the election petition were voters in the same or two Constituencies and had cast their votes in both the Constituencies and therefore their votes are void. It was contended that as there were void votes in favour of revision petitioner, his election is void and if the void votes were not accepted in his favour respondent would have been declared elected. Respondent therefore sought a declaration that election of the revision petitioner is void and that he is the returned candidate. Revision petitioner resisted the petition contending that there was no double voting as alleged and his election has not been materially affected by acceptance of any void votes and therefore his election cannot be set aside or the respondent declared the elected candidate. C.R.P.No.1103/07 & W.P.(C) 33438/07 3 Inspite of the declaration sought in the election petition, petitioner did not file a recrimination petition as provided under section 99 of the Kerala Panchayat Raj Act. 3. To substantiate his case respondent examined himself as PW1 and also 11 witnesses who allegedly voted twice. Exts.A1 to A18, C1 and X1 to X19 were also marked. No evidence was adduced on the side of the petitioner. 4. Learned Munsiff on the evidence found that there were 10 void votes as PW6 Musthaffa, who was enrolled as voter No.193 and 609 of Booth No.1 of Ward No.XVI, PW7 Balkis who was enrolled as voter No.667 and 847 of Booth No.1 of Ward No.XVI/, PW8 Muhammed Noushad,who was enrolled as voter No.590 and 873 of Booth No.2 of Ward No.XVI had voted twice and all their votes are void. It was also found that PW9 Ibrahim who was enrolled as voter No.627 of Booth No.1 of Ward No.XVI and voter No. 37 of Booth No.1 of Ward No.XIII had cast his vote twice and therefore his vote in Ward No.XVI is C.R.P.No.1103/07 & W.P.(C) 33438/07 4 void. Similarly it was found that PW2 Narayana Parusha had cast her votes in two constituencies as voter No.472 of Booth No.2 of Ward No.XVI and voter No.639 of Booth No.2 of Ward No.XV and thus her vote in Ward No.XVI/2 is a void vote. It was also found that PW3 Chithravathi, who was enrolled as voter No.474 of Booth No.2 of Ward No.XVI and voter No.640 of Booth No.2 of Ward No.XV and her vote was cast in Ward No.XVI/2 by impersonation and hence void. It was also found that PW4 Chandrakala, was enrolled as voter No.495 in Booth No.2 of Ward No.XVI and voter No.643 in Booth No.2 of Ward No.XV and her vote in Ward No.XVI/2 was cast by impersonation and that vote is void. PW5 Hareesh and PW11 Beefathima were found to be enrolled as voters in Ward No.XVI/2 and XV/2 and Ward No.XVI/1 and XIII/1 as voters 469 and 642, 605 and 110. On the evidence it was found that the votes polled in the names of PW5 and PW11 in Ward No.XVI/2 and XVI/1 were by impersonation and hence void. Based on these findings it was C.R.P.No.1103/07 & W.P.(C) 33438/07 5 found that there were 10 void votes and as majority of the returned candidate was only six votes, improper acceptance of the ten void votes materially affected the result of the election. Thus election of the petitioner was declared void. Finding that only five of the void votes could be located and identified as the other void votes polled in Ward No.XVI/2 cannot be sorted out, it was held that respondent cannot be declared the returned candidate. The election petition was allowed in part declaring the election of revision petitioner void. 5. Revision petitioner challenged that order before District Court, Kasaragod in C.M.A.33/2006. Respondent challenged the refusal to grant a declaration in his favour in C.M.A.42/2006. Learned District Judge on reappreciation of evidence confirmed the findings of the Munsiff and dismissed both the appeals. C.R.P.1103/2007 is filed by the returned candidate challenging dismissal of the appeal confirming the order of the C.R.P.No.1103/07 & W.P.(C) 33438/07 6 learned Munsiff. Respondent filed W.P.(C) NO.33438/2007 challenging the dismissal of his appeal. 6. Learned senior counsel appearing for the revision petitioner and learned counsel appearing for the respondent were heard. 7. Learned senior counsel argued that neither the trial court nor the appellate court entered a finding that the void votes were cast in favour of the revision petitioner and thereby acceptance of those votes materially affected his election and instead finding that result of the election is materially affected by the improper acceptance of 10 void votes, set aside the election and the order is illegal. Learned senior counsel pointed out that as provided under section 102 (1)(d)(iii), only if result of the election, in so far as it concerns, the revision petitioner, has been materially affected by improper reception of void votes as contended by respondent, his election could be declared void and when the court could not C.R.P.No.1103/07 & W.P.(C) 33438/07 7 identify or sort out the 10 void votes or found that the 10 void votes were cast in favour of the revision petitioner, it cannot be said that election of the revision petitioner was materially affected by the improper reception of the void votes and on that sole ground order of the learned Munsiff as confirmed by the learned District Judge is unsustainable. Learned senior counsel also argued that the trial court and the appellate court did not properly appreciate the evidence and finding that there was double voting by PW6, PW7 and PW8 in the same Constituency and PW9, PW2, PW3, PW4, PW5 and PW11 in two Constituencies is not in accordance with the pleading and evidence and therefore findings cannot be sustained. Learned senior counsel argued that there was no case in the election petition that any vote was cast by impersonation and instead case was only that there was double voting in favour of the petitioner and the specific case was persons named in the petition cast double voting and in the absence of a case of C.R.P.No.1103/07 & W.P.(C) 33438/07 8 voting by impersonation, courts below were not justified in finding that there was impersonation and votes which were cast in the name of PW9, PW2, PW3, PW4, PW5 and PW11 by impersonation are void is not sustainable and orders of the courts below are to be set aside. 8. Learned counsel appearing for respondent, the election petitioner, argued that eventhough in the election petition apart from a declaration that election of revision petitioner is void, a further declaration that election petitioner is the returned candidate was sought and as provided under section 99 of Kerala Panchayat Raj Act, no recrimination petition was filed and in the absence of recrimination petition, revision petitioner is not entitled to contend that any of the votes cast in favour of election petitioner is void and when there are only two candidates and it is proved that 10 void votes were improperly received, those void votes could only be excluded from the votes counted in favour of the revision petitioner and C.R.P.No.1103/07 & W.P.(C) 33438/07 9 as he was declared elected only with a majority of six votes it is proved that improper reception of ten void votes materially affected his election and therefore the order passed by the Munsiff as confirmed by the District Judge is perfectly correct. Learned counsel also argued that enquiry contemplated in the first stage is whether there was any void votes and when the specific case was that there were double voting by the named persons and on the evidence it is established that there were 10 void votes, and the majority of the returned candidate was only 6 votes, it can only be found that improper reception of void votes materially affected election of the revision petitioner and thus his election can only be declared void. Learned counsel also argued that it is at the second stage, court has to find out to whom the void votes were cast and when such an enquiry is conducted, in the absence of a petition for recrimination under section 99, the ten void votes C.R.P.No.1103/07 & W.P.(C) 33438/07 10 could only be excluded from the votes counted in favour of the revision petitioner, as he is disentitled to contend that election petitioner received any void votes. It is therefore argued that election of the revision petitioner was rightly declared void. Learned counsel also argued that once election of the revision petitioner was found void, court should have declared petitioner as the duly elected candidate, as there are only two candidates and in the absence of a recrimination petition, none of the votes counted in favour of the election petitioner could be excluded and the 10 proved void votes are to be excluded and if so excluded the total valid votes received by the revision petitioner could only be 552 and the valid votes counted in favour of the election petitioner was 556 and therefore he should have been declared elected with a majority of 4 votes. Learned counsel further argued that learned Munsiff was not justified in rejecting the declaration sought for by the respondent that he C.R.P.No.1103/07 & W.P.(C) 33438/07 11 is the returned candidate and first appellate court also did not properly appreciate this aspect and the order is to be modified to the extent of declaring election petitioner, the returned candidate. 9. Section 102 of Kerala Panchayat Raj Act, (hereinafter referred to as the Act), provides the grounds for declaring election void. Under clause (d) of sub section (1) of Section 102 subject to the provisions of sub section (2) if the court is of the opinion that result of the election in so far as it concerns the returned candidate, has been materially affected by (i) improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent or (iii) by improper reception, refusal or rejection of any vote or reception of any vote which is void or (iv) by any non-compliance with the provisions of the Act or of any rules or orders made thereunder, court shall declare the election of the returned C.R.P.No.1103/07 & W.P.(C) 33438/07 12 candidate to be void. Sub rule (ii) only deals with corrupt practices, with which we are not concerned in these petitions. The election of the revision petitioner was sought to be declared void only on the ground provided under section 102 (1) (d) (iii). To set aside the election of the revision petitioner on that ground, court has to first find whether there was either improper reception or improper refusal or improper rejection of any vote or reception of any vote which is void. The court has then to find out whether the said improper reception, refusal, rejection or reception of void vote materially affected result of the election, in so far as it concerns a returned candidate. Though learned counsel appearing for respondent argued that, when the returned candidate was declared elected with a majority of only 6 votes and it is proved that there are 10 void votes, result of the election is materially affected and the election is liable to be set aside, I cannot agree. Even if it is proved that C.R.P.No.1103/07 & W.P.(C) 33438/07 13 there was improper reception, improper refusal or improper rejection of any vote or reception of votes which are void, it need not necessarily materially affect the result of the election of the returned candidate. Take a case where the returned candidate was declared elected, with a majority of 100 votes and it is proved that there are 50 void votes, can it be said that even if all the 50 votes were cast in favour of the returned candidate, his election has been materially affected, by reception of those 50 votes. Take another example where it is proved that the returned candidate was elected with a majority of 20 votes and there are more than 2 candidates. Even if it is proved that there were 25 void votes, can it be said that because of reception of 25 void votes, election of the returned candidate who had a majority of only 20 votes, reception of the 25 void votes materially affected the election of the returned candidate. If out of the 25 votes 20 votes were not cast in favour of the returned candidate, but either in C.R.P.No.1103/07 & W.P.(C) 33438/07 14 favour of one of the other candidates or in favour of the other two candidates. It cannot be. Therefore for the sole reason that election of the returned candidate was with a majority of only 6 votes and there were 10 void votes, it is not possible to hold that election of the returned candidate was materially affected by reception of 10 void votes. The result of the election, in so far as the returned candidate is concerned could be said to be materially affected, if it is proved that the returned candidate secured more void votes than the majority of votes for which he was declared elected. Therefore without finding that the proved void votes were cast and counted in favour of the returned candidate, it cannot be said that his election was materially affected by improper reception of void votes. If there are void votes and those void votes were not counted in favour of the returned candidate, how can one say that his election was materially affected by the improper reception of the void votes. Can the C.R.P.No.1103/07 & W.P.(C) 33438/07 15 returned candidate made liable for the act of those voters in casting of void votes to in some other candidate, when it is shown that void votes were not cast in his favour. Definitely not. 10. The total polled votes in Ward No.XVI of Paivalike Constituency of Paivalike Grama Panchayat held on 26.9.2005 was 1164. There were 3 tendered votes and 7 postal votes. The revision petitioner who was declared elected, secured 562 votes. Respondent the only other candidate secured 556 votes. There were 53 void votes out of which one void vote was the postal vote. The revision petitioner was declared elected with a majority of 6 votes. Even if the factual finding of the trial court and appellate court that there were 10 void votes as proved by evidence is accepted, if the evidence is insufficient to hold that those 10 void votes were cast and counted in favour of the revision petitioner, it is not possible to hold that the 10 void votes are to be excluded from the 562 votes cast and counted in favour of the C.R.P.No.1103/07 & W.P.(C) 33438/07 16 revision petitioner. The void votes could have been cast in favour of the election petitioner. It is also possible that majority of the void votes were among the 53 void votes. Therefore for the sole reason that there were ten void votes and revision petitioner was declared elected with a majority of only 6 votes, it is not possible to hold that election of the revision petitioner was materially affected by the reception of those 10 void votes. If all those 10 void votes were not cast in favour of revision petitioner, and only less than five were cast in his name, it cannot be said that reception of those ten void votes materially affected his election. Only if six or more of the void votes were cast in his favour, it could be said that reception of the void votes materially affected his election. Such a finding could be rendered only if those 10 void votes are identified, sorted out and and found that those votes or at least six of those votes were originally cast in favour of the revision C.R.P.No.1103/07 & W.P.(C) 33438/07 17 petitioner, it could be said that his election was materially affected by reception of those void votes. If that finding, is not possible on the evidence on record, election of the revision petitioner cannot be declared void. 11. The argument of the learned counsel appearing for respondent Adv.Sri.Kodoth Sreedharan relying on the Constitution Bench decision of the Apex Court in Jabar Singh v. Genda Lal (A.I.R.1964 SC 1200) and in P.Malaichami v. M.Andi Ambalam and others (1973(2) SCC 170) is that when it is found that there is double voting and thereby improper reception of void votes, none of the votes cast in favour of the respondent could be declared void and in the absence of a recrimination petition by revision petitioner the void votes are to be deducted from the votes secured by the revision petitioner, as he did not prefer a recrimination petition as provided under section 99 of the Act and therefore election of the revision petitioner C.R.P.No.1103/07 & W.P.(C) 33438/07 18 is void. 12. The Constitution Bench in Jabar Singh's case (supra) analysed the scope of an enquiry to be conducted, while considering an election petition to set aside the election on the ground under section 100(1)(d) (iii) of Representation of People Act,1951 which is in pari materia with Section 102(1)(d)(iii) of the Act and also the distinction between an election petition claiming a single relief based on the allegation of double voting and an election petition claiming a composite or additional relief to get himself or any other candidate declared elected. It was held that in dealing with the challenge to the validity of the election of the returned candidate under section 100(1)(d), election petitioner has to prove not only existence of one or other grounds specified in clauses (i) to (iv) of Section 100 (1) (d), it is also to be established that as a result of existence of the said ground, result of the election in so far as it concerns the returned C.R.P.No.1103/07 & W.P.(C) 33438/07 19 candidate has been materially affected and thus it is obvious that what the Tribunal has to find is whether the election in so far as it concerns the returned candidate has been materially affected or not. It was held that what it means is that the only point which the tribunal has to decide is whether election of the returned candidate has been materially affected. No other enquiry is legitimate or permissible in that stage and the requirement under section 100(1)(d) necessarily imports limitations on the scope of the enquiry. The majority of the Constitution Bench held:- “Confining ourselves to clause (iii) of Section 100(1)(d), what the Tribunal has to consider is whether there has been an improper reception of votes in favour of the returned candidate. It may also enquire whether there has been a refusal or rejection of any vote in regard to any other C.R.P.No.1103/07 & W.P.(C) 33438/07 20 candidate or whether there has been a reception of any vote which is void and this can only be the reception of a void vote in favour of the returned candidate.” 13. The argument of Advocate Mr.Kodoth Sreedharan is that the first part of the enquiry ends with this aspect and if it is found that void votes have been improperly received, then in the absence of a recrimination petition as provided under section 99 of the Act, none of the votes cast in favour of the respondent could be excluded and when there are only two candidates and it is proved that there are void votes and as those votes are to be excluded, they could only be excluded from the votes cast in favour of the revision petitioner and if so, 10 void votes are to be deducted from the votes secured by the returned candidate and as a result, when the 556 votes secured by the respondent stands intact, the votes secured by the revision petitioner could C.R.P.No.1103/07 & W.P.(C) 33438/07 21 only be 552 votes and therefore election of revision petitioner was rightly declared void. The argument based on Malaichami's case (supra) is that in the absence of a recrimination petition as provided under section 99 of the Act, Election Tribunal has no jurisdiction to go into the question whether any void votes had been cast in favour of the election petitioner, who had claimed the seat for himself, unless the successful candidate had filed a recrimination petition and when there are only two candidates, there is no other option but to exclude the void votes from the total votes secured by the revision petitioner. 14. The Constitution Bench in Jabar Singh's case (supra) analysing the scope of an enquiry in a case falling under section 100(1)(d)(iii) held:- “In other words, the scope of the enquiry in a case falling under section 100(1)(d)(iii) is to determine whether any votes have C.R.P.No.1103/07 & W.P.(C) 33438/07 22 been improperly cast in favour of the returned candidate, or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in S.100(1) (d)(iii) the result of the returned candidate's election has been materially affected, and that, incidentally, helps to determine the scope of the enquiry. Therefore, it seems to us that in the case of a petition where the only claim made is that the election of the returned C.R.P.No.1103/07 & W.P.(C) 33438/07 23 candidate is void, the scope of the enquiry is clearly limited by the requirement of S.100(1)(d) itself. The enquiry is limited not because the returned candidate has not recriminated under S.97(1). In fact S.97(1) has no application to the case falling under S.100(1) (d)(iii). The scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. If the result of the enquiry is in favour of the petitioner who challenges the election of the returned