IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 39 of 2008()
1. PANKJAKSHAN, AGD 36 YEARS,
... Petitioner
Vs
1. MURUGADAS, AGED 30 YEARS
... Respondent
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent :SRI.M.K.DAMODARAN (SR.)
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :03/09/2008
O R D E R
PIUS.C.KURIAKOSE & J.
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M.F.A.No.39 of 2008
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Dated this the 3rd day of October, 2008
JUDGMENT
The defeated candidate, in an election to the District
Panchayat of Palakkad District from Vandithavalam Division, is
aggrieved by the order of the Election Tribunal dismissing the
election petition which he filed as E.P. No.173/2005 and hence
this first appeal under Section 113 of the Panchayat Raj Act. The
respondent, who was respondent before the Election Tribunal, is
the successful candidate. Parties will be referred to as they were
before the Election Tribunal.
2. The election petition was filed under Sections 87, 88,
89, 91, 92, 100, 102 and 103 of the Kerala Panchayat Raj Act,
1994 and the prayer in the petition was for recounting of the
votes and for declaration of the petitioner as the returning
candidate. The case of the petitioner, as averred in the petition,
was that he contested in the election as official candidate of the
Indian National Congress (I) with the symbol ‘Hand’. The
respondent contested the election as an official candidate of
M.F.A.No.39/2008 2
Janatha Dal (S) with the symbol of that party. The counting of
the votes was held for grama panchayat, block panchayat and
District Panchayat at Chittur Government College on 27/9/2005.
For the purpose of counting, the State Election Commission
provided 25 result sheets. In 12 Vandithavalam Division to
which the petitioner contested, the total number of voters was
69281. Out of them 46,782 exercised their franchise. At the
counting, 1221 votes were declared as invalid votes. Out of this,
certain votes cast properly and without any ambiguity were
also kept aside as invalid by the counting officers. Whenever,
objections were raised, it was declared that those votes will be
again verified and counted for, if found valid. However, even
after completing the counting, those votes were not rechecked.
As per the votes recorded by the counting agencies the petitioner
secured 22810 votes while the respondent secured 22751 votes.
But the returning officer declared the respondent as duly elected.
It is contended that for the purpose of declaration of the result,
number of votes secured by the respondent is taken as 22818
as against 22743 by the petitioner. Declaration was made at
2.30 A.M. on 28/9/2005. Noticing the apparent mistake, the
M.F.A.No.39/2008 3
petitioner instantaneously gave a complaint to the Returning
Officer, stating that there is apparent mistake in the addition and
tabulation of votes apart from other illegalities and improprieties
in the counting. The Returning Officer rejected the petitioner’s
request for recounting. On the same day itself the petitioner filed
application before the District Collector and the Chief Election
Commissioner, requesting for stoppage of declaration of result
and recounting of votes. Thereafter, the petitioner preferred
another application before the Election Commission stating the
discrepancies in the counting and requesting for verification of
the correctness of the election. It is highlighted that there is
apparent mistake in the tabulation and addition of the votes
secured by the petitioner from booth No.2 Ward No.13,
Pattikulam of Perumatty Grama Panchayat. From this booth, the
petitioner secured 279 votes while the respondent secured 212
votes. While writing the votes as secured by the candidates,
the votes secured by the petitioner has been included as the vote
secured by the respondent relating to booth No.2 of Ward No.13
of Pattikulam. So also the votes secured by the respondent from
the said booth has been included as the votes secured by the
M.F.A.No.39/2008 4
petitioner. Thus the difference of 67 votes arose. 67 votes
were deducted from the account of the petitioner and added to
the account of the respondent. Had it not been so, the petitioner
would have secured 22810 as against 22751 by the respondent.
This is clear from the pattern of votes secured by the other
candidates in the Grama Panchayat and block Panchayat of
Booth No.2 of Ward No.13 of Perumatty Grama Panchayat.
Hence the petitioner prayed for recounting of the votes held in
Booth No. 2 of Ward No.13 of Perumatty Grama Panchayat and
for declaration that the petitioner is duly elected candidate to D9
District Panchayat from 12 Vandithavalam Division in Palakkad
District.
3. Serious counter was filed by the respondent contending
that the petition does not maintainable and the the pleadings
raised in the petition are without bona fides or truth. The
petitioner’s claim that he secured 22810 as against 22751
secured by the respondent is strongly denied. It is stated that
the petitioner claim that he preferred application before the
District Collector and Chief Election Commissioner for stoppage of
declaration of result is false. It is stated that the petitioner’s
M.F.A.No.39/2008 5
contention that there was mistake in the tabulation and addition
of votes secured by him from booth No. 2 in Ward No.13 of
Pattikulam and Perumatty Grama Panchayat is wrong. Equally
wrong is the claim that the petitioner secured 279 and the
respondent secured 212 votes from the said booth. The
petitioner’s contention that a mistake crept in while adding the
votes in booth No.2 in Ward 13 of Perumatty Grama Panchayat
was stoutly denied. It is then contended that the petitioner has
not complied with the mandatory provisions of Kerala Panchayat
Raj Act in filing the petition. It is also contended that there is
no case made out for declaring the petitioner as the returned
candidate and the petitioner has not made any objection in
writing to the returning officer regarding the recounting of votes.
Subsequently, the petitioner has invoked jurisdiction of the
Chief Election Commissioner for recounting of the votes. For
that reason also, the present election petition is not
maintainable.
4. At trial, witnesses PWs 1 to 6 were examined and
Exts.A1 to A5 were marked on the side of the petitioner and no
evidence was adduced on the side of the respondent. Further,
M.F.A.No.39/2008 6
Ext.X1 to 7 were also marked. The learned Judge formulated
the following points to be considered in the appeal;
1. Whether the recounting of polled in
booth No.2, Ward No.13 of Pattikilam of
Perumatty Grama Panchayat in the election to
D9 District Panchayat is necessary ?
2. Whether the petitioner is entitled to
get an order for declaration of the election of
respondent to D9, District Panchayat from
Vandithavalam Division as invalid and illegal
and to set aside the same after recounting ?
3. Whether the petitioner is entitled to be
declared duly elected to D9, District Panchayat
from 12 Vandithavalam Division after re-
counting ?
4. What order as to costs ?
5. The learned District Judge considered the Points Nos. 1 to
3 together. Even though several contentions were raised at the
time of hearing, the counsel for the petitioner confined his
M.F.A.No.39/2008 7
dispute regarding the votes in Booth No.2 in Ward 13 of
Perumatty Grama Panchayat. PW4 Returning Officer gave
evidence to the effect that Ext.X3 is the result sheet of the
candidates. He stated that votes secured by the candidates
belonging to the same political group contesting in election to
Grama Panchayat, District Panchayat, Block Panchayat will vary.
The learned District Judge found that this variation was natural
and that the evidence of PW4 will not be of any assistance to the
petitioner. PW 5 is the Returning Officer of Perumatty Grama
Panchayat election. Ext.X4 is the result sheet signed by PW5
in the aforesaid election relating to Perumatty Grama Panchayat
from Ward No.13. He does not have information regarding the
political alliance of the various candidates and combination
between the various political parties inter se. The learned
District Judge found that the votes secured by the candidates
shown in Ext.X4 result sheet is not comparable with the election
to which the petitioner and the respondent contested. PW-6 was
the Returning Officer for the Block Panchayat election. Exts.X5
and X6 are the nomination forms of the two candidates, who
contested to that election. He also testified that even when
M.F.A.No.39/2008 8
candidates are contesting to Block Panchayat and Grama
Panchayat and District Panchayat with the support of the very
same political group and the voters are casting their votes in the
very same booth, number of votes will always vary depending
upon the personality cult, influence and other relevant factors.
The learned Judge correctly found that the evidence of this
witness will not be of any assistance to the petitioner. Ext.X1
was the result sheet of the election and the same was marked
with the consent of the counsel. Ext.X1 was not relied on by the
learned Judge for the reason that the same does not pertain to
booth No.2 in Ward No.13 of Perumatty Panchayat, to which the
petitioner confined his submissions at the time of argument.
PW 3 is the assistant Returning Officer, who is the signatory to
Exts.X1 and X2. Exts.X1 and X2 do not relate to the votes
secured by the petitioner or the respondent and hence they were
found to be irrelevant to decide the issue. Ext-X2(e) to (f) are
the result sheets relating to the votes secured by the petitioner
and the respondent from Perumatty Panchayat. PW-3 is the
signatory to Exts.X2(e) to (f). PW-3 testified that according to
Ext.X2(f) the petitioner secured 212 votes and the respondent
M.F.A.No.39/2008 9
secured 279 votes. It is testified further that the result sheets
were given to the agents of the candidate for perusal and at that
time the agents have not raised any objection regarding the
entries in the result sheets. He stated that if any complaint or
request for recounting had been made then and there, the same
would have been acknowledged by him and he would have
contacted the returning officer for taking further steps. He
stated further that the entries in Ext.X2 series were made by
him after verification and it is thereafter he put the signature.
The result sheet were also given to the Returning Officer.
According to the learned District Judge, despite cross
examination, the evidence of this witness corroborated that he
had made all entries with due care and caution and that those
entires were verified and given to the agents of the candidates
for verification and it is only thereafter that he signed the same.
The learned Judge noticed that this witness was summoned by
the petitioner, however, was not sought to be declared hostile or
cross examined by the petitioner. The learned Judge did not
become inclined to accept the case of the petitioner that his
counting agent and he promptly raised objection at the time of
M.F.A.No.39/2008 10
counting itself. Ext.A1 is the copy of the complaint dated
28/9/2005. Ext.A2 is copy of the petition filed by the petitioner
before the Election Commissioner, Thiruvananthapuram. Though
Ext.A2 is dated 1/10/2005, the same was seen verified and
declared only on 25/10/2005 which was one month after the
election. Ext.A2, according to the learned Judge, affects
genuineness of Ext.A1. The learned Judge noticed that there
was no evidence to show that Ext.A1 was sent by Registered Post
or ordinary post or directly filed before the Election Commission.
Ext.A3, being an unauthenticated Photostat copy of the result
sheet, was rejected by the District Judge as unreliable document.
Ext.A4 is a copy of the order passed by the Returning Officer,
District Panchayat and District Collector, Palakkad. It was
noticed by the District Judge that the contention of the petitioner
before the District Collector was that counting of votes was taken
up simultaneously at District/Block/Grama Panchayat level and
because of this counting agents were unable to put attention to
the counting tables. The further contention raised before the
District Collector was that some other votes held in favour of the
UDF candidates were attached to the bundle of LDF candidates.
M.F.A.No.39/2008 11
The learned District Judge noticed that the order passed by the
District Collector is a well reasoned order and it was correctly
found by the District Collector that there was no evidence to
substantiate the allegation of the petitioner that some of the
UDF votes were attached to the bundles of the LDF votes.
Variation in the stand taken by the petitioner before the court in
the election petition and before the District Collector at the time
of hearing was noted by the District Judge. It was noticed that
the complaint raised in the election petition was not raised in
Ext.A4 at the earliest point of time. Ext.A5 is the intimation
received from the State Election Commission to the petitioner
stating that the dispute is outside the purview of the State
Election Commission. The District Judge, however, highlights
that copy of the complaint in respect of which Ext.P5 was
received is not produced by the petitioner. But, the learned
District Judge would rightly discern from Ext.A5 itself that the
complaint was regarding the counting of votes. It is confined to
wrong entry in the result sheet relating to booth No. 2 of ward 13
of Pattikulam. Thus, the District Judge held that the petitioner
does not have a definite and consistent case. The learned
M.F.A.No.39/2008 12
District Judge has analised the evidence given by PW-2, counting
agent of the petitioner. It is highlighted that specific question
was put to PW-2 as to the dispute regarding the entries in the
tabular form, he answered that he has not signed it. PW-2
admitted that entires in the tabulation form could be seen from
the candidate as well as the agent and that they have got every
right to verify the same. It was also admitted that they did not
make any request for verification of the same. In the light of
PW-2’s evidence, the learned District Judge observed that the
petitioner’s contention that mistake had crept in while preparing
the result sheet is not correct. The learned District Judge has
made analysis of the evidence adduced by the PW1, the
petitioner. It was noticed that the petitioner had admitted that
he has not filed any complaint to the Returning Officer at the
counting station at Chittur College regarding the mistaken
entries in the result sheet. PW-1’s version that the allegation is
raised on the basis of a comparison of the entries noted by the
counting agent and the entires prepared by himself was rejected
by the District Judge as baseless and self serving. It was seen
that the petitioner could obtain details of the votes secured from
M.F.A.No.39/2008 13
the District Collector only in the evening on 30.9.2005 and it is
only thereafter that he will be able to know the alleged mistake.
Absence of definite pleadings and evidence to that effect in the
plea, the variation between the stand taken by the petitioner at
different stages are all highlighted by the District Judge. The
learned District Judge declined the request of the petitioner for
invocation of Section 115(2) of the Panchayat Raj Act and
ultimately dismissed the Election Petition directing the parties to
suffer costs.
6. I have heard submissions of Sri. George Poonthottam,
the learned Counsel for the petitioner, when this first appeal
came up for consideration. It was submitted by Sri.George
Poonthottam, learned counsel for the petitioner, that the dispute
falls within a very narrow campus and the same can be resolved
by perusing the tabulation sheet in respect of Booth No.2 of Ward
No.13 of Perumatty Grama Panchayat. Considering that
submission, I passed the following orders on 2/7/2008.
"The State Election Commission,
Thiruvanathapuram is directed to make
M.F.A.No.39/2008 14
available the tabulation sheet in respect of
booth No.2 in Ward No. 13 of Perumatty
Grama Panchayat in respect of Division No.12
Vandithavalam (Palakkad District Panchayat).
Handover a copy of this order to
Sri.Murali Purushothaman, Standing Counsel
for the Election Commission who will ensure
compliance of the above order. Tabulation
sheet called for will be made available in a
sealed cover. Post on 18/7/2008.”
7. The Standing Counsel for the State Election Commission
Sri. Murali Purushothaman, pursuant to that order produced
tabulation sheet in a sealed cover on 18/7/2008. I ordered
that the same will be kept under safe custody as part of the
records. Thereafter, on 25/7/2008 , after hearing both sides
and Sri.Murali Purushothaman, learned Standing Counsel for the
Election Commission I passed the following order;
“Mr.Murali Purushothaman, the
learned Standing Counsel for the Election
M.F.A.No.39/2008 15
Common is directed to file a statement
regarding the actual number of votes polled
by the appellant and the respondent in
booth No.2 of Ward No.13 of perumatty
Panchayat, i.e. the election in dispute. This
will be done after verifying the ballot
papers. In order to enable the Standing
Counsel to file the statement as directed
above, the District election Officer will
collect the ballot papers from the concerned
treasury. Post on 13/8/2008.
Handover a copy of this order to the
Standing Counsel for the Election
Commission.
8. Thereafter, I.A. No.1982/2008 was filed by the
respondent seeking recall of the order dated 25/7/2008 and
considering that I.A. I dispose of the I.A. issuing the following
order ‘;
“Heard Sri.M.K.Damodaran and
Sri.George Poonthottam the learned counsel
M.F.A.No.39/2008 16
for the appellant. Having regard to the
submissions addressed, this I.A. is disposed
of in the following terms;
The order dated 25/7/2008 will be kept
in abeyance till such time as the MFA is
finally disposed of. Post on 11/8/2008 at
1.45″.
9. Very extensive submissions were addressed before by
Sri.George Poonthottam, learned counsel for the appellant, who
drew my attention to Annexure A1, A2, , A5, Ext.X7, X2(f) and
to the oral evidence adduced in the case particularly evidence of
PWs2 and PW1. Sri.M.K.Damodaran, learned Senior counsel for
the respondent would meet all the submissions of
Sri.Poonthottam. My attention was drawn by Sri.Damodaran to
Rules 48,49,51 and 54 of the Kerala Panchayat Raj (Conduct of
Election Rules) and to the statutory Forms 24,24(a) and 25.
Sri.Damodaran also draw my attention to certain portions of the
evidence in the case. Strong reliance was placed by
Sri.M.K.Damodaran on the judgment of the Supreme Court in
M.F.A.No.39/2008 17
Ram Sewak Yadav. Hussain Kamil Kidwai and others ( AIR
1964 Supreme Court 1249), Tanaji Ramachandra Nimhan v.
Swati Vinayak Nimhan & Ors.( AIR 2006 S.C.1218), Judgment of
Sri.Padmanabhan J in Balaram v. Aravindakshan (1988 (1)
KLT 615), judgment of a Division Bench of Court in Dominic v.
Gopalakrishnan (1993 (2) KLT 88) to the Judgment of the
Supreme Court in P.K.K.Shamsudeen v.K.A.M.Mappillai
Mohindeen and others (AIR 1989 Supreme Court 640). To the
judgment of the Supreme Court in M.R.Gopalakrishnan v.
Thachady Prabhakaran and Others (1995 Supp(2) Supreme
Court Cases 101) and also to the judgment of the Supreme Court
in Bhabhi v. Sheo Govind ( AIR 1975 SC 2117).
10. Sri.George Poothottam, in reply would rely on the
observations of the Supreme Court in paragraphs 67 and 8 of
the judgment reported in 1964 Supreme Court 1249(supra).
The entire lower court records are available and I have scanned
them.
8. Having considered the rival submissions addressed before
me by Sri.George Poonthottam, learned counsel for the
petitioner and the learned Senior counsel Sri.Damodaran in the
M.F.A.No.39/2008 18
light of the evidence available in the case and the ratio emerging
from the various decisions cited before me by Sri.Damadaran
which throw light on the aspects to be kept in mind by Election
Tribunal while trying election petitions and while considering
requests for recounting, I am of the view that there is no warrant
for interfering with the Judgment of the Election Tribunal. As
rightly noticed by the learned District Judge, the appellant
petitioner did not have a consistent case and at any rate the
evidence adduced in this case falls short of holding that mistake
as alleged by him crept into the tabulation sheet while recording
the votes secured by the petitioner and the respondent in Booth
No. 2. Recounting is to be allowed only when the same is
absolutely necessary and warranted by the evidence oral,
documentary and circumstantial. The evidence in this case will
not justify the recounting asked for and I do not find any reason
not to accept the submission of Sri.Murali Purushothaman,
learned Standing counsel for the Election Commission on the
basis of the instructions from the custodian of the ballot papers
that even if recount is ordered no useful purpose will be served
from the point of the petitioner.
M.F.A.No.39/2008 19
The result is that the M.F.A will stand dismissed, but in the
circumstances, without any order as to costs.
PIUS.C.KURIAKOSE,JUDGE
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