IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 16861 of 2006(G)
1. MOLY THOMAS, AGED 41 YEARS,
... Petitioner
Vs
1. CLARA JOHNEY, W/O. JOHNEY,
... Respondent
For Petitioner :SRI.RENJITH THAMPAN
For Respondent :SRI.T.N.MANOJ
The Hon'ble MR. Justice K.PADMANABHAN NAIR
Dated :08/08/2006
O R D E R
K. PADMANABHAN NAIR,J
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W.P.(C). NO. 16861 OF 2006
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Dated this the 8th day of August 2006
JUDGMENT
The petitioner is the respondent in Election O.P. No. 10/2005. The
petitioner and the respondents were candidates who contested from Ward No.VI
of Mattathur Gramapanchayat in Thrissur District. The petitioner was declared
elected by margin of one vote. The respondent filed Election O.P. 10/05 for
declaration that the election of the petitioner is void. The main ground alleged is
that there were concoctions and manipulations at the time of counting and the
request made by the agent of the respondent for recounting was rejected. It
was also contented that one valid vote secured by the respondent was illegally
declared to be invalid and invalid votes polled in favour of the petitioner was
declared as valid. It is also contented that one missing vote was added as a
vote polled in favour of the petitioner. These facts were stated in detail in
Paragraphs 15 to 18 in the Original Petition filed by the respondent. In
paragraph 20 the respondent has stated details regarding double voting. The
petitioner filed a petition denying all the averments raised in the election petition.
She pressed for a hearing on the question of maintainability. The learned Munsiff
considered the question of maintainability and held that the election
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petition is maintainable. Challenging that order the petitioner who is a returned
candidate has filed this writ petition.
2. During the pendency of this writ petition respondent filed an application
to appoint a Commissioner to examine the ballot papers with the assistance of
Government servant who is conversent with the election procedure and for filing
a report. The petitioner filed a counter contenting that such petition cannot be
allowed. It was contented that the petitioner has no objection in bringing the
entire ballot papers to the court and the court itself can count the ballot papers.
The court below on 25.7.2006 appointed a Junior Superintendent and the
Deputy Nazir to inspect the the ballot papers. The petitioner amended the O.P
by incorporating a prayer to quash that order also.
3.The learned counsel appearing for the petitioner has argued that the
election petition as framed is not maintainable. The main objection raised was
that as per Rule 51 of the Kerala State Election Rules the respondent ought to
have filed an application for recounting the votes before the Returning Officer
prior to the announcement of the result and since there was failure to file such an
application, he is not entitled to challenge the election. The court below
relying on a
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decision reported in Chandrika Prasad Yadav vs. State of Bihar (AIR 2004 SC
2036) held that the failure to file a petition for recounting before the Returning
Officer is not a ground the election petition. I do not think it is just and proper to
consider the correctness of the finding of the court below regarding the
maintainability in this writ petition. In Radhakrishnan Vs. Kerala Lok Ayukta
(2006 (1) KLT661) this court has held that it is not a healthy practice to entertain
challenge against orders passed by the Tribunal disposing of preliminary
objection and keep that matter pending. So this writ petition is liable to be
dismissed without prejudice to right of the petitioner to challenge the
maintainability also in appropriate proceedings. If the election petition is
ultimately decided against the petitioner, she has to file an appeal and at that
stage she can challenge this order also in that appeal.
4. The respondent has filed an application to appoint an Advocate
Commissioner assisted by a Government employee who is conversant with the
election procedure to examine the ballot papers and file a report. Overruling the
objections raised by the petitioner. The court below had appointed a Junior
Superintendent and a Deputy Nazir to conduct inspection of ballot papers and
file a report. That
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decision is illegal. It is settled position of law that recounting of votes cannot be
conducted for the mere fact that such a relief has been sought for. The court
below will have to hold whether the petitioner has made out a prima facie case.
It is trite law that in election matters the court is bound to maintain purity and also
the secrecy of the election. So the court below went wrong in appointing a
Junior Superintendent and the Deputy Nazir to inspect the ballot papers. But the
Court below can direct the appropriate authority to produce all material
documents in Court. Such documents shall be kept under safe custody. In
case the Court finds that the respondent has made out a prima facie case the
ballot papers can be examined.
5. The learned counsel appearing for the respondent has argued that in
Para 6 of the petition filed by the petitioner herself she had admitted that she has
no objection in bringing the entire ballot papers to the court and examine the
same. It is true that such admission is made in the court. But even then I am of
the view that before examining the ballot papers the court has to consider
whether the writ petitioner has made out a prima facie case. So a proper
course open to the Munsiff is to issue summons/direction to the appropriate
Officers to produce the sealed ballot box, sealed voters list, counter foil
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etc. to the court and keep all those material records under safe custody and
then proceed with the trail court of the case. If the court finds that the
respondent establish a case prima facie then the Munsiff can pass an order for
recounting.
In the result, the writ petition is disposed of in the following manner. The
order passed by the court below, directing the Junior Superintendent and
Deputy Nazir to inspect the ballot papers is set aside. It is open to the Court
below to issue summons or directions to the officer/officers who are the
custodian of the relevant records to produce the ballot papers, other ballot
account, counterfoils etc. before the court. If an application for the above said
purpose is filed the learned Munsiff shall pass appropriate orders in
accordance with law as expeditiously as possible at any rate within three weeks
from the date of filing of such an application. The challenge against the
preliminary finding is closed without prejudice to the petitioner to challenge the
finding regarding the maintainability of the Original Petition in the appeal that she
may have to file in case the election petition is decided against her.
K. PADMANABHAN NAIR,JUDGE.