Allowed

Vijayan v. Lakshimi .M.

Kerala HC14 Dec 2012CRP/358/2012

Case brief

AI extract

What is this about?

The High Court allowed Civil Revision Petitions concerning an election petition. The court found that serial numbers of ballot papers are not invariable requirements for challenging vote rejection. It held lower courts erred in relying solely on naked-eye signature comparison for double voting allegations and remanded the case for further evidence.

What did the court decide?

Civil Revision Petitions allowed; orders of courts below set aside and election petition remanded for further evidence.

Vijayan Vs Lakshimi .M. — Election Law | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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FRIDAY, THE 14TH DAY OF DECEMBER 2012/23RD AGRAHAYANA 1934

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CRP.No. 358 of 2012 () ---------------------EP.NO.6/2010 IN AS (ELE).33/2012 of MUNSIFF COURT, DEVIKULAM

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REVISION PETITIONER(S)/APPELLANT/RESPONDENT:

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VIJAYAN, AGED 44 YEARS S/O.DAIVATHAN, RESIDING AT POOVATHINKAL HOUSE MURIKKUMTHOTTY, KULAPPARACHAL.P.O. RAJAKUMARI VILLAGE, UDUMBANCHOLA TALUK.

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BY ADVS.SRI.K.GOPALAKRISHNA KURUP (SR.) SRI.S.MANU SMT.K.DEEPA (PAYYANUR)

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RESPONDENT(S)/RESPONDENT/PETITIONER:

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LAKSHMI .M., AGED 23 YEARS D/O.MUTHURAMAN, RESIDING AT POOVATHINKAL HOUSE MURIKKUMTHOTTY, KULAPPARACHAL.P.O. RAJAKUMARI VILLAGE, UDUMBANCHOLA TALUK. 685 619.

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R1 BY ADV. SRI.T.KRISHNAN UNNI (SR.) R1 BY ADV. SRI.LIJI.J.VADAKEDOM R1 BY ADV. SRI.JOICE GEORGE

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-12-2012, ALONG WITH CRP. 364/2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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“C.R.”

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V.CHITAMBARESH, J.

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C.R.P.Nos. 358 & 364 of 2012

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Dated this the 14^th day of December, 2012

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O R D E R

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Is it an invariable rule that the serial number of the ballot papers should be disclosed in the election petition itself in the case of improper rejection of Valid Votes or improper reception of Void Votes ? I heard Mr.T.Krishnanunni, Senior Advocate on behalf of the election petitioner and Mr.K.Gopalakrishna Kurup, Senior Advocate on behalf of the returned candidate on this pivotal issue.

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The dispute concerns the election to Ward No.VIII of Rajakumari Grama Panchayat in Idukki District held on 25.10.2010 under the provisions of the Kerala Panchayat Raj Act, 1994 ('the Act' for short). The returned candidate secured 396 votes whereas the election petitioner secured 395 votes and 9 votes were held invalid as per the declaration of results by the Returning Officer on 27.10.2010. The election petitioner

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C.R.P.No.358 & 364 of 2012

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challenged the election of the returned candidate under Section 102(d)(iii) of the Act on the following among other grounds:-

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i) There has been double voting by a voter by name Mr.Biju Devassia (in Ward Nos.VIII and X1)

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ii) There has been an improper rejection of two valid votes cast in favour of the election petitioner.

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iii) There has been an improper reception of one void vote cast in favour of the returned candidate.

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The third ground aforementioned which had been concurrently turned down by the courts below is not seriously pursued by the election petitioner and therefore the first and second ground alone remain for consideration.

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The Election Court held that Mr.Biju Devassia has double voted and that his vote is liable to be eschewed from the account of the returned candidate bringing down his tally from 396 to 395 votes. The Election Court found on evidence that one vote (bearing Sl.No.0866) has been validly cast in favour of the election petitioner and held that the rejection of the said

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C.R.P.No.358 & 364 of 2012

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vote as invalid was not proper. The Election Court held that the returned candidate secured only 395 votes whereas the election petitioner secured 396 votes who was hence declared as the successful candidate. But the appellate court opined that there is paucity of pleadings in the election petition to allow re-count of votes and come to a finding as regards improper rejection of a valid vote. The Appellate Court found that both the returned candidate and the election petitioner secured 395 votes each and the successful candidate was directed to be decided by draw of lot. The lot fell in favour of the returned candidate and the verdict is challenged in C.R.P.No.358 of 2012 by the returned candidate and in C.R.P.No.364 of 2012 by the election petitioner.

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The first question is as to whether Mr.Biju Devassia has cast his vote in Ward Nos.VIII and X1 of Rajakumari Grama Panchayat as alleged by the election petitioner. It is trite law that the following conditions should be satisfied to hold that there has been double voting in order to

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C.R.P.No.358 & 364 of 2012

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eschew a vote from the account.

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i) The person alleged to have double voted should be a registered voter in both the constituencies.

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ii) The vote should have been cast in both the constituencies in the name of the person who has allegedly double voted.

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iii) One and the same voter should have cast his vote in both the constituencies.

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The evidence on record shows that Mr.Biju Devassia is a registered voter in Ward Nos.VIII and IX of Rajakumari Grama Panchayat and that a vote was cast in both the constituencies as well in his name. The further question is as to whether the same person - Mr.Biju Devassia - has voted both in Ward Nos.VIII and X1 as alleged by the election petitioner in order to eschew his vote from the account. Mr.Biju Devassia was examined as PW.2 and the Polling Agents of Ward Nos.X1 and VIII were examined as Pws.3 and 4 respectively on behalf of the election petitioner. The appellate court on an analysis of the evidence of Pws. 2, 3 and 4 found that their oral testimony

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C.R.P.No.358 & 364 of 2012

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cannot be safely relied upon to hold that Mr.Biju Devassia has double voted. Both the Election Court and the Appellate Court indulged in the comparison of Exts.X1, X2 and X5 by the naked eye as permitted under Section 73 of the Indian Evidence Act. The following are the details of Exts.X1, X2 and X5.

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*SL.No.*	*Exhibit*	*Document*	*Remarks*
1	X1	Summons	Admitted signature of PW.2 in Ward No.VIII
2	X2	Counterfoil of ballot paper in No.VIII	the Ward Admitted signature of PW.2 in Ward No.VIII
3	X5	Counterfoil of ballot paper in No.X1	the Ward Disputed signature of PW.2 in Ward No.X1

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The Appellate Court while discussing about the

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comparison of the admitted signatures found in Exts.X1 and X2 with the disputed signature in Ext.X5 observed in para 25 of the judgment as follows:-

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C.R.P.No.358 & 364 of 2012

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“25. ........... A comparison of the signature in Ext.X1, X2 and X5 will go to show that it was almost similar and identical except the fact that there was some extension made beneath line after the signature in a different way in Ext.X5. ............ Considering the fact that PW.2 is a party worker of the respondent and his evidence is not trustworthy for the reasons discussed above, the possibility of this witness making some difference in his signature in the counterfoils of the ballot paper which was not issued to him in booth No.XI cannot be ruled out. .............. So it is clear from this that PW.2 had exercised his vote in ward No.XI also by putting his signature in a slightly different manner so as to make it appear that it was done by another person.” (emphasis supplied)

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Even the Election Court has not found any characteristic similarity in the signatures found in Exts.X1 and X5 to conclusively hold that Mr.Biju Devassia voted both in Ward Nos.VIII and X1. The interlocutory application filed by the returned candidate to forward the documents to a hand writing expert for analysis pending election petition assumes

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C.R.P.No.358 & 364 of 2012

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significance in this context. The report of an expert though is only an opinion evidence can be relied on to corroborate the other legal and tangible evidence available in the case. The case in hand reveals that Pws.2, 3 and 4 have been found not trustworthy by the appellate court and the finding on double voting is rested on comparison by the naked eye only. Even the Appellate Court has found that there is some slight variation in the signatures and it was better therefore to have forwarded the documents to a hand writing expert for analysis. I also compared the signatures in Court and I do feel that the election court erred in dismissing I.A.No.131 of 2012 filed by the returned candidate to forward the documents to an expert in this state of affairs.

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The further question is as to whether there has been an improper rejection of two valid votes cast in favour of the election petitioner and the finding is supported by necessary pleadings in that behalf. The relevant pleadings can be found in para 8 of the Election Petition which is extracted

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C.R.P.No.358 & 364 of 2012

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below:-

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“8. At the time of counting the votes, 2 valid votes that should have been accepted and added to the account of the petitioner was declared and rejected as invalid votes by the counting officials and returning officer. Among them on one of the ballots the original impress on the ballot was upon the column meant for petitioner, but the same was declared and rejected as invalid since some polling ink was seen spread over to the respondent's symbol. The ink so happened to be spread was occasioned at the time when the voter had folded the ballot. That fact could be made out by our naked eye itself. On the other vote which was rejected as invalid, major portion of the impress on the ballot was in the column meant for petitioner. That too could be understood by a mere look. Both the voters who have cast the above two votes, casted and intended it be casted in favour of petitioner alone. Eventhough that fact was brought to the notice of the concerned authorities by the petitioner they did not pay any heed to the submissions, but have arbitrarily and unlawfully rejected them instead

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C.R.P.No.358 & 364 of 2012

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of receiving them as valid votes in favour of the petitioner.”

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The material facts have been well pleaded in the Election Petition and the details of the material particulars to declare the election void have to be established by the election petitioner in evidence only. The appellate court egregiously erred in reversing the finding of the Election Court that there has been an improper rejection of one valid vote on the ground of lack of pleadings in the election petition. The returned candidate points out that the details as regards the number of counting table or the serial number of the ballot papers have not been furnished in the election petition. It is further stated that no contemporaneous evidence has been adduced by the election petitioner to spin out a case for re-count of votes even in the election petition as to warrant the opening of the ballot box. The election petitioner has specifically stated in his evidence that he did raise an objection as regards the rejection of a valid vote even during the first round of counting. The election

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C.R.P.No.358 & 364 of 2012

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petitioner has further testified that the Returning Officer promised to verify this aspect after completing the counting of votes in all the wards which he did not really do.

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I find that the total number of votes polled in Ward No.VIII of Rajakumari Grama Panchayat is only about 800 and the counting tables would only be few giving little room for difficulty in identification. The election petitioner has also stated in evidence that he could not notice the serial number of the ballot papers as he was expecting response from the Returning Officer after the counting of votes in all the wards. It is not an invariable rule that the serial number of the ballot paper should be mentioned in the election petition itself in the case of improper rejection of a valid vote or improper reception of a void vote. The following are the decisions on the point.

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i) Mahendra Pal v. Ram Dass Malanger [(2000) 1 SCC 261]

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ii) Jagjit Singh v. Dharam Pal Singh [1995 Suppl (1) SCC 422)

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C.R.P.No.358 & 364 of 2012

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iii) Arun Kumar Bose v. Mohd. Furkan

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Ansari [1984 (1) SCC 91]

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The extrication of the 8 invalid votes revealed that

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the vote having Sl.No.0866 was quite valid since the intention of the voter to whom the vote was cast is clearly discernible from the ballot paper. The major portion of the vote was found in favour of the election petitioner with the rest in the shaded area and the intention of the voter could be easily deciphered by a mere look at the ballot paper. The vote was liable to be counted as valid by a prudent person especially in the wake of the general instructions issued by the Election Commission of India as regards the counting of votes. The election petitioner seeks an opportunity to adduce more evidence as regards the exact number of counting tables and his inability to mention the serial number of the ballot papers. The Appellate Court did not look into the evidence on record at all on this aspect on the erroneous premise that the pleadings in the election petition are insufficient to grant relief in that regard.

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C.R.P.No.358 & 364 of 2012

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I have no option but to set aside the orders of the courts below and remand the election petition. Either parties will be afforded opportunity to adduce further evidence as is necessary. The parties will appear in the election court on 7.1.2013. The proceedings shall be taken to a logical end without delay.

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The Civil Revision Petitions are allowed. No costs.

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V.CHITAMBARESH, Judge.

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nj.

Vijayan v. Lakshimi .M.

Case brief

What is this about?

What did the court decide?

Vijayan v. Lakshimi .M.

Case brief

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