IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 CRP.No. 238 of 2009() ------------------------------- EA.96/2008 of DISTRICT COURT, ALAPPUZHA OPELE.20/2005 of MUNSIFF COURT, MAVELIKKARA .................... REVN. PETITIONER(S): APPELLANT ------------------------------ K.M.VISWANATHAN, AGED 37 YEARS, S/O.MADHAVAN, RESIDING AT KANJIRAVILAYIL THEKKATHIL, PAYYANELLOOR P.O., NOORANADU, ALAPPUZHA DISTRICT. BY ADV. MR.K.N.VENUGOPALA PANICKER RESPONDENT(S): RESPONDENTS ------------------------- 1. MANOJ C.SEKHAR, AGED 36 YEARS, S/O.CHANDRASEKHARA KURUP, RESIDING AT VYSHNAVAM, PAYANALLOOR P.O., NOORANADU, ALAPPUZHA DISTRICT. 2. SURESH KUMAR, AGED ABOUT 33 YEARS, RESIDING AT CHALAYIL KOCHUTHUNDIL HOUSE, PAYANALLOOR P.O., NOORANADU. 3. UNNI KOCHUKUNJU, AGED ABOUT 38 YEARS, S/O.KOCHUKUNJU, RESIDING AT THEMANOM POIKAYIL HOUSE, PAYYANALLOR P.O., NOORANADU. R1 BY ADV. MR.RASHEED C.NOORANAD THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss ORDER ON IA. NO.910/2009 IN CRP NO.238/2009 DISMISSED 02.11.2009 SD/- S.S.SATHEESACHANDRAN, JUDGE TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ----------------------------- C.R.P.No.238 OF 2009 -------------------------- Dated this the 2nd day of November 2009 ------------------------------------- JUDGMENT Revision is directed against the judgment dated 11/3/2009 in E.A No.96 of 2008 passed by the learned District Judge, Alappuzha. Revision petitioner was the returned candidate from ward No.12 of Palamel Grama Panchayat in the election held on 24/09/2005. His election was challenged by the first respondent on various grounds including one that six voters had cast double votes which tilted the election in favour of the revision petitioner, the returned candidate. Second and third respondents were the other candidates who contested the election from the above ward. The grounds canvassed for impeaching his election were resisted by the revision petitioner who also moved a recrimination petition as provided by the rules. C.R.P.No.238 OF 2009 Page numbers After taking evidence, the learned Munsiff, being satisfied that a recounting of the votes was necessary with respect to the six votes relating to the voters who were imputed of having cast their votes twice violating the rules of election the Chief Ministerial Officer was directed to trace out the votes of the above said six voters. When the ballot papers of ward No.12 were scrutinised by that ministerial officer it was noticed that 19 ballot papers of ward No.12 of Palamel Grama Panchayat were missing. Subsequently after checking the ballot papers in some others wards of the panchayat, which had been brought in before the court pursuant to orders passed earlier in an interlocutory application, 18 ballot papers out of the missing 19 ballot papers had been traced out. The ballot papers of the six voters who were found to have cast double voting were traced out and it was then found that four of them had voted in favour of the revision petitioner, returned candidate and the other two in favour of the first C.R.P.No.238 OF 2009 Page numbers respondent. Since such voters had cast double votes the votes cast by them were treated as void. On recounting excluding the votes cast by the above voters, it was found that the petitioner in the election petition/first respondent in the revision had a majority of two votes than the votes secured by the revision petitioner who had been declared as the returned candidate. The learned Munsiff thereupon allowed the Election Petition declaring the election of the revision petitioner as void and the first respondent declared as the returned candidate from ward No.12 of Palamel panchayat. Order so passed by the learned Munsiff was challenged in the Election Appeal referred to above by the revision petitioner. The learned District Judge after hearing both sides confirmed the preliminary order passed by the learned Munsiff directing for recounting after tracing out the six votes cast by the voters who were found to have cast double votes in the election. But the final order was set aside remitting the case for fresh C.R.P.No.238 OF 2009 Page numbers consideration subject to directions how the matter has to be dealt with and disposed of. It was noticed that one postal vote sent by a voter was found not a valid vote by the Chief Ministerial Officer without any order from the court on the validity of that vote. Chief Ministerial Officer who was directed to check votes of the six voters who had cast double voting and then recounting of the votes had no authority to declare any vote as void was the view formed by the learned District Judge. The main grievance canvassed by the learned counsel for the revision petitioner at the time of hearing is that the fishing out of 18 votes out of the 19 missing votes from the bundles of ballots of other wards of the panchayat which had been brought to the court for some other purpose, but, not for the purpose of tracing out the missing ballot papers of ward No.12, was not proper and correct and it was patently illegal. The learned counsel inviting my attention to Section 55 of the Kerala Panchayat Act contended that the secrecy of C.R.P.No.238 OF 2009 Page numbers ballot papers should be preserved and its sanctity not liable to be tampered without specific orders from the court. So much so, procedure followed by the Chief Ministerial Officer in tracing out the missing ballot papers from other ballot bundles relating to other wards was highly irregular and further illegal, and, according to the counsel, the ballot papers so traced out should be excluded from consideration in deciding and adjudicating upon the disputes involved in the present election petition. Though the submissions made by the counsel at first blush may appear formidable, having regard to the totality of the facts and circumstances presented and also appreciating the disputes in the petition for consideration before the court, I find so long as the petitioner has no case that the 18 traced out ballot papers from other ballot bundles of other wards do not relate to the votes cast by the voters in ward No.12 of Palamel panchayat challenge canvassed on the premise that the ballot bundles of other wards cannot be opened and its C.R.P.No.238 OF 2009 Page numbers sanctity not to be tampered cannot be given much significance or value. How the ballot papers of ward No.12 happened to be mixed and kept in ballot bundles of other wards, no doubt, demanded an explanation. Even in the absence of such explanation when the traced out ballot papers were found to be relating to the votes cast in ward No.12, its validity remaining unchallenged, such votes cannot be excluded from purview while adjudicating upon the disputes canvassed in the Election Petition. Justice cannot be made a casualty for the reason that some mischief had been committed by one or other party subverting the process of law. The learned District Judge is perfectly justified in concluding that whatever be the irregularity in tracing out of the 18 missing ballot papers out of the 19 votes found missing by the Chief Ministerial Officer, the votes traced out cannot be excluded for the purpose of recounting of the votes cast in the ward No.12 of Palamel panchayat. Perusing the judgment rendered by the C.R.P.No.238 OF 2009 Page numbers learned District Judge, I find that it does not suffer from any impropriety or illegality, leave alone any jurisdictional infirmity warranting interference in exercise of the revisional jurisdiction vested with this court. It is also brought to my notice that the term of the revision petitioner who now continues in office as the returned candidate from ward No.12 of Palamel panchayat is due to expire within a short term, less than a year. When that be the case in the backdrop that the Election Petition had been previously decided in favour of the first respondent with a finding that some of the votes cast in favour of the returned candidate were void and it had materially affected the result of the election. I find an expeditious disposal of the Election Petition by the learned Munsiff taking note of the observations and direction given by the District Judge in his judgment is the need of the hour. C.R.P.No.238 OF 2009 Page numbers 2. I direct the learned Munsiff to dispose of the Election Petition within a period of four months from the date of production/receipt of a copy of this order. Following the directions given by the District Judge in the appeal and in accordance with law the learned Munsiff has to dispose the Election Petition on the materials produced. Revision is disposed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv