IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 490 of 2009()
1. T.VINOD KUMAR, S/O. THAMBI, MERIAM CODE
... Petitioner
Vs
1. G. ANIL KUMAR, S/O. GOPALA PILLAI,
... Respondent
2. R. VINOD KUMAR, S/O. RAVEENDRAN NAIR
3. P.VIJAYAKUMAR, D/O. PARUKUTTY,
4. MADHUSOODANAN NAIR, S/O. SUKUMARAN NAIR
For Petitioner :SRI.SUMAN CHAKRAVARTHY
For Respondent :SRI.G.S.REGHUNATH
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :08/03/2010
O R D E R
S.S.SATHEESACHANDRAN,J
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C.R.P NO. 490 OF 2009
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Dated this the 8th day of March 2010
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ORDER
Revision petitioner was the returned candidate
from Ward No. 14, Chavadi Ward of Kunnathukal Grama Panchayat
in the general election held on 24/09/2005. The respondents were
the other candidates who contested the election from that ward.
2. Petitioner and the 1st respondent got equal votes in
counting and when a decision was made by the returning officer
by lot, the petitioner was elected. Election of the petitioner was
impeached by the 1st respondent filing election petition as O.P
(Ele.) No.20 of 2005 before the Additional Munsiff Court-I,
Neyyattinkara imputing allegations that there were number of
double votings in favour of the petitioner and various irregularities
were committed by the returning officer in counting of votes.
Petitioner resisted that application filing a counter denying the
allegations impeaching his election.
3. On the side of the petitioner in the election petition,
PW1 to 8 were examined and Exts.A1 to A4 were marked. Exts.X1
to X9(a) series were also marked. 1st respondent in the revision
petition was examined as DW1. The learned Munsiff after
considering the materials came to the conclusion that two among
C.R.P NO. 490 OF 2009 Page numbers
the voters examined as PW6 and PW7 had cast their votes in more
than one ward including Chavadi Ward, and so much so, the votes
cast by them in the above ward were void. On examining the
ballot papers of those two voters, PW6 and PW7, it was found that
they had voted in favour of the revision petitioner. Since the
votes cast by them were void, those two votes were reduced from
the total number of votes polled in favour of the revision
petitioner. Votes cast in his favour on such deduction was found
to be less by one vote than the votes polled in favour of the
petitioner in the election petition. Election of the revision
petitioner was thereupon set aside and the petitioner in the
election petition was declared elected from ward No.14, Chavadi
Ward of Kunnathukal Grama Panchayat by the learned Munsiff
allowing the election petition. Order of the learned Munsiff was
challenged by the revision petitioner preferring an appeal as
Election Appeal No.5 of 2008 before the District Court,
Thiruvananthapuram. The learned District Judge after
reappreciating the materials produced and hearing the counsel on
both sides concurred with the findings entered by the learned
Munsiff and dismissed the appeal. Revision is directed against the
concurrent decision so rendered by the two inferior courts setting
aside the election of the revision petitioner and declaring the 1st
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respondent as duly elected from Ward No.14, Chavadi Ward of
Kunnathukal Grama Panchayat.
4. I heard the counsel on both sides. In the revision,
producing a copy of the election petition supplied by the revision
petitioner with a petition seeking for its reception as additional
evidence, the learned counsel for the revision petitioner
contended that there was noncompliance of the mandatory
provisions under the Kerala Panchayat Raj Act 1994, hereinafter
referred to as the Panchayat Raj Act, in presenting of the election
petition impeaching the election of the returned candidate. That
ground of attack is raised by the counsel on the footing that there
was no proper attestation by the petitioner to the election petition
in the copy of the petition supplied to the respondent the revision
petitioner. Inviting my attention to Section 89(2) and 93(1) of the
Panchayat Raj Act, the learned counsel for the petitioner
contended that as there was no proper attestation in the copy of
the election petition given to the respondents to such petition, the
court should have dismissed the election petition at the threshold
as not entertainable. Noncompliance with the provision under
Section 89(2) of the above Act, according to the counsel, can be
set up even in revision as such defect is fatal in entertaining of an
election petition presented to challenge the election of the
returned candidate.
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5. The challenge canvassed in the revision with
reference to the copy of the election petition produced to impeach
the concurrent findings made by the court below advancing a case
that there was no proper attestation in the copy of the election
petition supplied to the revision petitioner/the returned candidate
cannot be given any merit or consideration. If at all the revision
petitioner had any such case, it should have been canvassed
before the trial court questioning the maintainability of the
election petition. Not only that such a challenge was never raised,
it is also noticed that the revision petitioner on a previous
occasion had approached this court with a writ petition. When an
order was passed by the trial court before completion of the
evidence to verify the vote cast by PW7 after entering a finding
that he had cast double voting in more than one ward, this court
had quashed that order for verification directing the learned
Munsiff to complete the evidence and then decide the question of
verification. Petitioner has no case that any challenge was made
as to the maintainability of the petition in the previous writ
petition or at any stage earlier on the ground now canvassed in
revision before the trial court or even when a writ petition was
filed before this court in the circumstance indicated above. It is
also noticed that in the memorandum of the revision also no
ground is canvassed impeaching the maintianability of the election
C.R.P NO. 490 OF 2009 Page numbers
petition for the reason that there was defective attestation in the
copy of the petition served on the respondents to such petition.
Further more, it is noticed from the copy of the election petition
served on the revision petitioner/the 1st respondent in the election
petition, which is produced before this court, that the petitioner in
the election petition had signed on all pages and in the last page,
advocate for the petitioner had also subscribed his signature. The
apex court, in “F.A Sapa v Singora” (1991(3) SCC 375) has
held that what is required is that the copy should be attested by
the petitioner to be a true copy of the petition under his signature.
The apex court has held thus. “As regards the requirement of
attestation, all that Section 81(3) requires is that the copy should
be attested by the petitioner to be a true copy of the petition
under his own signature. The requirement of this part of the
provision is met by each copy having been signed at the foot
thereof by the concerned petitioner. No particular form of
attestation is prescribed; all that the Sub Section enjoins is that
the petitioner must attest the copy under his own signature to be
a true copy of the petition.” When that be the law laid by the
apex court, a copy of the petition with signature subscribed on all
pages by the petitioner to the election petition which is seen
subscribed by his counsel on the last page has to be treated as a
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duly attested true copy satisfying the compliance required under
Section 89(2) of the Panchayat Raj Act.
6. The trial court when it passed an order for
verification of the ballots earlier had entered a finding that among
the voters examined as PW3 to PW8 only one of them had cast
double voting in more than one ward rendering his vote polled in
Ward No.14, Chavadi Ward void. That order passed by the trial
court for verification of the votes having been set aside and the
case remitted by this court in the writ petition filed by the writ
petitioner, the court had entered a divergent finding that two
among the voters examined, PW6 and PW7, had cast double
voting in more than one ward, according to the counsel. The
finding so entered conflicting with the previous order is perse
wrong and further it indicates there was no application of mind by
the trial court to the materials tendered in the case, submits the
counsel. The challenge so canvassed is found to be meritless.
Before the completion of the trial, the learned Munsiff had passed
an order of verification of the ballots. On the materials placed by
the petitioner to the election petition and while passing such an
order, it was held that he had established his case of double
voting by PW7 alone. That order passed by the learned Munsiff
was set aside by this court directing him to complete the evidence
and then decide the question of verification of the votes to
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examine the challenge of double voting. After such verification
and analysing the evidence, the learned Munsiff concluded that
two voters, PW6 and PW7, had cast double voting and their votes
polled in Chavadi ward have to be extracted from the ballots to
examine for whom they had voted for excluding the votes cast by
them for such candidate. Previously the learned Munsiff had
expressed a view that PW7 alone had cast double voting has no
significance when the order so passed by the learned Munsiff had
been set aside by this court directing reconsideration of the
matter. The only question to be looked into is whether the finding
subsequently entered that PW6 and PW7 had cast double voting is
based on the evidence let in the case. The finding so entered by
the learned Munsiff that PW6 and PW7 had cast double voting
after reappreciation of the evidence had been approved by the
learned District Judge. In that back drop the challenge canvassed
that there was a previous finding by the learned Munsiff that only
one voter had cast double voting and so much so, the subsequent
finding made that two voters had cast double voting is
unacceptable as canvassed by the counsel does not have any
merit.
7. Petitioner in the election petition had named 12
persons with their addresses as the voters who had cast double
voting in more than one ward including the Chavadi Ward from
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which the revision petitioner was elected as the returned
candidate. He examined six of such voters as PW3 to PW8. The
learned Munsiff, on scrutiny of their evidence found, two of them,
PW6 and PW7, had cast double voting, both of them in Chavadi
Ward and another. As against the other voters examined, it was
concluded, the petitioner failed to prove their double voting. The
learned Munsiff had concluded that PW6 and PW7 had cast double
voting in more than one ward including Chavadi Ward after
comparing the signatures found in the courter foils of the ballot
papers in the two wards, and as the court is not an expert in
comparing the signatures, the conclusion formed on such
comparison has no merit and it should not have been acted upon
to enter a finding that those two voters had cast votes in more
than one ward, is the submission of the learned counsel for the
revision petitioner. It is noticed that in the appeal also the same
challenge was canvassed, but, repelled by the learned District
Judge taking note of the decision rendered by the apex court in
“Neelalohithadasan Nadar v George Mascrene” (1993(1)
KLT 887). The apex court in the above decision has held that,
“When larger public interest is served by expeditious disposal of
an election petition, then the course adopted by the High Court as
held the court can compare the signature of the witnesses to find
out whether they were signatures of the same person”. The
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above decision was rendered by a three judges bench of the apex
court and that being so, views expressed striking a different note
by two judges bench cannot be applied as the correct law on the
competency of the court to compare signature of a person in
forming an opinion as to whether they were subscribed by the
same person. This court in “Mohammed Rafi.S v
Fathahudeen” (2008(3) KLJ 276), after adverting to the
decisions rendered on the above question has held thus: “The
power of the court under Section 73 of the Evidence Act to
compare the signatures, the disputed with the admitted, without
the aid of an expert cannot be questioned”. So there was nothing
wrong with the learned Munsiff on comparing the admitted
signatures of PW6 and PW7 with their disputed signatures and
forming a conclusion that they had cast double voting in more
than one ward including Chavadi Ward.
8. In a case where election of a returned candidate is
challenged on the ground of double voting by one or more voters,
such double voting by the voter should be established. In the
present case, among the voters examined, PW3 to PW8, who are
alleged to have cast double voting, two of them, PW6 and PW7,
were found to have cast double voting in more than one ward
including Chavadi Ward. PW6 admitted his signature in the
counter foil, Ext.X8 relating to another ward, Kunnathukal ward.
C.R.P NO. 490 OF 2009 Page numbers
He also stated that his signature in the counter foil Ext.X8 relating
to the Chavadi Ward was similar to his signature. In cross
examination, he further stated that he had cast his vote in
Chavadi Ward and someone else had cast his vote in the other
ward, Kunnathukal Ward. Taking note of his admission that the
counter foil Ext.X8 relating to Kunnathukal Ward contain his
signature and also on comparison of his signature in the counter
foil with admitted signatures, the learned Munsiff concluded that
he had cast double voting in more than one ward. Similar if not
worse was the evidence of PW7 who admitted his signatures in
the counter foils relating to Kunnathukal Ward and Chavadi Ward,
Ext.X9 and Ext.X9(a) respectively. He further stated in the
election he had voted in two constituencies including Chavadi
Ward . Though there was no challenge during the course of his
examination that the person named in the counter foils Ext.X9 and
Ext.X9(a) relating to the two wards is different, it is seen later a
challenge was sought to be raised that the voter named in the two
counter foils are different. Before me also it was contended that
in the election petition, PW7 is shown as daughter of one
Claramma but in the witness list he is shown as the son of one
Victor. It is further contended that the witness examined as PW7
was the driver of the petitioner in the election petition and his
evidence is therefore unacceptable. The learned District Judge
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before whom also the same challenges had been pressed into
service had repelled them observing that even when the 1st
respondent in the election petition was examined as DW1, he had
admitted that the father’s name of PW7 is Victor and he had no
case that his mother’s name is not Claramma. He was the driver
of the petitioner to the election petition does not curtail his right
or interdict him from casting his vote to a candidate according to
his choice. So his interestedness to the petitioner in the election
petition as being his driver which was canvassed to impeach his
evidence had been rightly repelled by the District Judge. Same
challenge canvassed before me also dreserve to be taken note of
only for its rejection.
9. The evidence let in the case has conclusively
established that two voters, PW6 and PW7, had cast double
voting, both of them, in favour of the revision petitioner in
Chavadi Ward and also in another ward, Kunnathukal Ward. So,
two votes cast by them in favour of the revision petitioner had to
be reduced from the double votes polled in favour of the revision
petitioner as those votes are void. Section 76(3) of the Panchayat
Raj Act mandates thus: “No person shall vote at a general election
in more than one constituency of the same level, and if a person
votes in morethan one such constituency, his votes in all such
constituencies shall be avoided”. Deducting the two votes which
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had been cast by PW6 and PW7 in favour of the revision petitioner
from the double votes polled in his favour, it was found that he
has secured a vote less than the petitioner in the election petition.
Since the petitioner in the election petition has secured more than
one vote than the revision petitioner the learned Munsiff has set
aside the election of the revision petitioner declaring the 1st
respondent in the revision as the returned candidate from Chavadi
Ward of Kunnathukal Grama Panchayat. The decision of the
learned Munsiff as confirmed by the District Judge in appeal is
found to be proper, valid and correct. Challenges raised in the
revision against the concurrent decision by the two courts below
are found to be devoid of any merit. The revision is dismissed.
Sd/-
S.S.SATHEESACHANDRAN
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv