{"id":178346,"date":"2010-03-08T00:00:00","date_gmt":"2010-03-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/t-vinod-kumar-vs-g-anil-kumar-on-8-march-2010"},"modified":"2016-12-07T12:51:20","modified_gmt":"2016-12-07T07:21:20","slug":"t-vinod-kumar-vs-g-anil-kumar-on-8-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/t-vinod-kumar-vs-g-anil-kumar-on-8-march-2010","title":{"rendered":"T.Vinod Kumar vs G. Anil Kumar on 8 March, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
T.Vinod Kumar vs G. Anil Kumar on 8 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRP.No. 490 of 2009()\n\n\n1. T.VINOD KUMAR, S\/O. THAMBI, MERIAM CODE\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. G. ANIL KUMAR, S\/O. GOPALA PILLAI,\n                       ...       Respondent\n\n2. R. VINOD KUMAR, S\/O. RAVEENDRAN NAIR\n\n3. P.VIJAYAKUMAR, D\/O. PARUKUTTY,\n\n4. MADHUSOODANAN NAIR, S\/O. SUKUMARAN NAIR\n\n                For Petitioner  :SRI.SUMAN CHAKRAVARTHY\n\n                For Respondent  :SRI.G.S.REGHUNATH\n\nThe Hon'ble MR. Justice S.S.SATHEESACHANDRAN\n\n Dated :08\/03\/2010\n\n O R D E R\n                     S.S.SATHEESACHANDRAN,J\n                     --------------------------------------\n                        C.R.P NO. 490 OF 2009\n                      -----------------------------------\n               Dated this the 8th day of March 2010\n                -------------------------------------------------\n                                   ORDER\n<\/pre>\n
                 Revision petitioner was the returned candidate<\/p>\n
from Ward No. 14, Chavadi Ward of Kunnathukal Grama Panchayat<\/p>\n
in the general election held on 24\/09\/2005. The respondents were<\/p>\n
the other candidates who contested the election from that ward.<\/p>\n
           2. Petitioner and the 1st respondent got equal votes in<\/p>\n
counting and when a decision was made by the returning officer<\/p>\n
by lot, the petitioner was elected. Election of the petitioner was<\/p>\n
impeached by the 1st respondent filing election petition as O.P<\/p>\n
(Ele.) No.20 of 2005 before the Additional Munsiff Court-I,<\/p>\n
Neyyattinkara imputing allegations that there were number of<\/p>\n
double votings in favour of the petitioner and various irregularities<\/p>\n
were committed by the returning officer in counting of votes.<\/p>\n
Petitioner resisted that application filing a counter denying the<\/p>\n
allegations impeaching his election.\n<\/p>\n
           3. On the side of the petitioner in the election petition,<\/p>\n
PW1 to 8 were examined and Exts.A1 to A4 were marked. Exts.X1<\/p>\n
to X9(a) series were also marked. 1st respondent in the revision<\/p>\n
petition was examined as DW1.                   The learned Munsiff after<\/p>\n
considering the materials came to the conclusion that two among<\/p>\n
C.R.P NO. 490 OF 2009             Page numbers<\/p>\n
the voters examined as PW6 and PW7 had cast their votes in more<\/p>\n
than one ward including Chavadi Ward, and so much so, the votes<\/p>\n
cast by them in the above ward were void. On examining the<\/p>\n
ballot papers of those two voters, PW6 and PW7, it was found that<\/p>\n
they had voted in favour of the revision petitioner. Since the<\/p>\n
votes cast by them were void, those two votes were reduced from<\/p>\n
the total number of votes polled in favour of the revision<\/p>\n
petitioner. Votes cast in his favour on such deduction was found<\/p>\n
to be less by one vote than the votes polled in favour of the<\/p>\n
petitioner in the election petition.      Election of the revision<\/p>\n
petitioner was thereupon set aside and the petitioner in the<\/p>\n
election petition was declared elected from ward No.14, Chavadi<\/p>\n
Ward of Kunnathukal Grama Panchayat by the learned Munsiff<\/p>\n
allowing the election petition. Order of the learned Munsiff was<\/p>\n
challenged by the revision petitioner preferring an appeal as<\/p>\n
Election Appeal No.5 of 2008 before the District Court,<\/p>\n
Thiruvananthapuram.         The    learned   District Judge   after<\/p>\n
reappreciating the materials produced and hearing the counsel on<\/p>\n
both sides concurred with the findings entered by the learned<\/p>\n
Munsiff and dismissed the appeal. Revision is directed against the<\/p>\n
concurrent decision so rendered by the two inferior courts setting<\/p>\n
aside the election of the revision petitioner and declaring the 1st<\/p>\n
C.R.P NO. 490 OF 2009            Page numbers<\/p>\n
respondent as duly elected from Ward No.14, Chavadi Ward of<\/p>\n
Kunnathukal Grama Panchayat.\n<\/p>\n
            4. I heard the counsel on both sides. In the revision,<\/p>\n
producing a copy of the election petition supplied by the revision<\/p>\n
petitioner with a petition seeking for its reception as additional<\/p>\n
evidence, the learned counsel for the revision petitioner<\/p>\n
contended that there was noncompliance of the mandatory<\/p>\n
provisions under the Kerala Panchayat Raj Act 1994, hereinafter<\/p>\n
referred to as the Panchayat Raj Act, in presenting of the election<\/p>\n
petition impeaching the election of the returned candidate. That<\/p>\n
ground of attack is raised by the counsel on the footing that there<\/p>\n
was no proper attestation by the petitioner to the election petition<\/p>\n
in the copy of the petition supplied to the respondent the revision<\/p>\n
petitioner. Inviting my attention to Section 89(2) and 93(1) of the<\/p>\n
Panchayat Raj Act, the learned counsel for the petitioner<\/p>\n
contended that as there was no proper attestation in the copy of<\/p>\n
the election petition given to the respondents to such petition, the<\/p>\n
court should have dismissed the election petition at the threshold<\/p>\n
as not entertainable.    Noncompliance with the provision under<\/p>\n
Section 89(2) of the above Act, according to the counsel, can be<\/p>\n
set up even in revision as such defect is fatal in entertaining of an<\/p>\n
election petition presented to challenge the election of the<\/p>\n
returned candidate.\n<\/p>\n
C.R.P NO. 490 OF 2009             Page numbers<\/p>\n
            5.     The challenge canvassed in the revision with<\/p>\n
reference to the copy of the election petition produced to impeach<\/p>\n
the concurrent findings made by the court below advancing a case<\/p>\n
that there was no proper attestation in the copy of the election<\/p>\n
petition supplied to the revision petitioner\/the returned candidate<\/p>\n
cannot be given any merit or consideration. If at all the revision<\/p>\n
petitioner had any such case, it should have been canvassed<\/p>\n
before the trial court questioning the maintainability of the<\/p>\n
election petition. Not only that such a challenge was never raised,<\/p>\n
it is also noticed that the revision petitioner      on a previous<\/p>\n
occasion had approached this court with a writ petition. When an<\/p>\n
order was passed by the trial court before completion of the<\/p>\n
evidence to verify the vote cast by PW7 after entering a finding<\/p>\n
that he had cast double voting in more than one ward, this court<\/p>\n
had quashed that order for verification directing the learned<\/p>\n
Munsiff to complete the evidence and then decide the question of<\/p>\n
verification. Petitioner has no case that any challenge was made<\/p>\n
as to the maintainability of the petition in the previous writ<\/p>\n
petition or at any stage earlier on the ground now canvassed in<\/p>\n
revision before the trial court or even when a writ petition was<\/p>\n
filed before this court in the circumstance indicated above.   It is<\/p>\n
also noticed that in the memorandum of the revision also        no<\/p>\n
ground is canvassed impeaching the maintianability of the election<\/p>\n
C.R.P NO. 490 OF 2009            Page numbers<\/p>\n
petition for the reason that there was defective attestation in the<\/p>\n
copy of the petition served on the respondents to such petition.<\/p>\n
Further more, it is noticed from the copy of the election petition<\/p>\n
served on the revision petitioner\/the 1st respondent in the election<\/p>\n
petition, which is produced before this court, that the petitioner in<\/p>\n
the election petition had signed on all pages and in the last page,<\/p>\n
advocate for the petitioner had also subscribed his signature. The<\/p>\n
apex court, in “F.A Sapa v Singora” (1991(3) SCC 375) has<\/p>\n
held that what is required is that the copy should be attested by<\/p>\n
the petitioner to be a true copy of the petition under his signature.<\/p>\n
The apex court has held thus. “As regards the requirement of<\/p>\n
attestation, all that Section 81(3) requires is that the copy should<\/p>\n
be attested by the petitioner to be a true copy of the petition<\/p>\n
under his own signature.      The requirement of this part of the<\/p>\n
provision is met by each copy having been signed at the foot<\/p>\n
thereof by the concerned petitioner. No particular form of<\/p>\n
attestation is prescribed; all that the Sub Section enjoins is that<\/p>\n
the petitioner must attest the copy under his own signature to be<\/p>\n
a true copy of the petition.”    When that be the law laid by the<\/p>\n
apex court, a copy of the petition with signature subscribed on all<\/p>\n
pages by the petitioner to the election petition which is seen<\/p>\n
subscribed by his counsel on the last page has to be treated as a<\/p>\n
C.R.P NO. 490 OF 2009               Page numbers<\/p>\n
duly attested true copy satisfying the compliance required under<\/p>\n
Section 89(2) of the Panchayat Raj Act.\n<\/p>\n
             6.    The trial court when it passed an order for<\/p>\n
verification of the ballots earlier had entered a finding that among<\/p>\n
the voters examined as PW3 to PW8 only one of them had cast<\/p>\n
double voting in more than one ward rendering his vote polled in<\/p>\n
Ward No.14, Chavadi Ward void. That order passed by the trial<\/p>\n
court for verification of the votes having been set aside and the<\/p>\n
case remitted by this court in the writ petition filed by the writ<\/p>\n
petitioner, the court had entered a divergent finding that two<\/p>\n
among the voters examined, PW6 and PW7, had cast double<\/p>\n
voting in more than one ward, according to the counsel. The<\/p>\n
finding so entered conflicting with the previous order is perse<\/p>\n
wrong and further it indicates there was no application of mind by<\/p>\n
the trial court to the materials tendered in the case, submits the<\/p>\n
counsel. The challenge so canvassed is found to be meritless.<\/p>\n
Before the completion of the trial, the learned Munsiff had passed<\/p>\n
an order of verification of the ballots. On the materials placed by<\/p>\n
the petitioner to the election petition and while passing such an<\/p>\n
order, it was held that he had established his case of double<\/p>\n
voting by PW7 alone. That order passed by the learned Munsiff<\/p>\n
was set aside by this court directing him to complete the evidence<\/p>\n
and then decide the question of verification of the votes to<\/p>\n
C.R.P NO. 490 OF 2009              Page numbers<\/p>\n
examine the challenge of double voting. After such verification<\/p>\n
and analysing the evidence, the learned Munsiff concluded that<\/p>\n
two voters, PW6 and PW7, had cast double voting and their votes<\/p>\n
polled in Chavadi ward have to be extracted from the ballots to<\/p>\n
examine for whom they had voted for excluding the votes cast by<\/p>\n
them for such candidate.        Previously the learned Munsiff had<\/p>\n
expressed a view that PW7 alone had cast double voting has no<\/p>\n
significance when the order so passed by the learned Munsiff had<\/p>\n
been set aside by this court directing reconsideration of the<\/p>\n
matter. The only question to be looked into is whether the finding<\/p>\n
subsequently entered that PW6 and PW7 had cast double voting is<\/p>\n
based on the evidence let in the case. The finding so entered by<\/p>\n
the learned Munsiff that PW6 and PW7 had cast double voting<\/p>\n
after reappreciation of the evidence had been approved by the<\/p>\n
learned District Judge. In that back drop the challenge canvassed<\/p>\n
that there was a previous finding by the learned Munsiff that only<\/p>\n
one voter had cast double voting and so much so, the subsequent<\/p>\n
finding made that two voters had cast double voting is<\/p>\n
unacceptable as canvassed by the counsel does not have any<\/p>\n
merit.\n<\/p>\n
             7.   Petitioner in the election petition had named 12<\/p>\n
persons with their addresses as the voters who had cast double<\/p>\n
voting in more than one ward including the Chavadi Ward from<\/p>\n
C.R.P NO. 490 OF 2009              Page numbers<\/p>\n
which the revision petitioner was elected as the returned<\/p>\n
candidate. He examined six of such voters as PW3 to PW8. The<\/p>\n
learned Munsiff, on scrutiny of their evidence found, two of them,<\/p>\n
PW6 and PW7, had cast double voting, both of them in Chavadi<\/p>\n
Ward and another. As against the other voters examined, it was<\/p>\n
concluded, the petitioner failed to prove their double voting. The<\/p>\n
learned Munsiff had concluded that PW6 and PW7 had cast double<\/p>\n
voting in more than one ward including Chavadi Ward after<\/p>\n
comparing the signatures found in the courter foils of the ballot<\/p>\n
papers in the two wards, and as the court is not an expert in<\/p>\n
comparing the signatures, the conclusion formed on such<\/p>\n
comparison has no merit and it should not have been acted upon<\/p>\n
to enter a finding that those two voters had cast votes in more<\/p>\n
than one ward, is the submission of the learned counsel for the<\/p>\n
revision petitioner. It is noticed that in the appeal also the same<\/p>\n
challenge was canvassed, but, repelled by the learned District<\/p>\n
Judge taking note of the decision rendered by the apex court in<\/p>\n
“Neelalohithadasan Nadar v George Mascrene” (1993(1)<\/p>\n
KLT 887).        The apex court in the above decision has held that,<\/p>\n
“When larger public interest is served by expeditious disposal of<\/p>\n
an election petition, then the course adopted by the High Court as<\/p>\n
held the court can compare the signature of the witnesses to find<\/p>\n
out whether they were signatures of the same person”.           The<\/p>\n
C.R.P NO. 490 OF 2009            Page numbers<\/p>\n
above decision was rendered by a three judges bench of the apex<\/p>\n
court and that being so, views expressed striking a different note<\/p>\n
by two judges bench cannot be applied as the correct law on the<\/p>\n
competency of the court to compare signature of a person in<\/p>\n
forming an opinion as to whether they were subscribed by the<\/p>\n
same      person.     This court   in   “Mohammed       Rafi.S   v<\/p>\n
Fathahudeen” (2008(3) KLJ 276), after adverting to the<\/p>\n
decisions rendered on the above question has held thus:      “The<\/p>\n
power of the court under Section 73 of the Evidence Act to<\/p>\n
compare the signatures, the disputed with the admitted, without<\/p>\n
the aid of an expert cannot be questioned”. So there was nothing<\/p>\n
wrong with the learned Munsiff on comparing the admitted<\/p>\n
signatures of PW6 and PW7 with their disputed signatures and<\/p>\n
forming a conclusion that they had cast double voting in more<\/p>\n
than one ward including Chavadi Ward.\n<\/p>\n
             8. In a case where election of a returned candidate is<\/p>\n
challenged on the ground of double voting by one or more voters,<\/p>\n
such double voting by the voter should be established. In the<\/p>\n
present case, among the voters examined, PW3 to PW8, who are<\/p>\n
alleged to have cast double voting, two of them, PW6 and PW7,<\/p>\n
were found to have cast double voting in more than one ward<\/p>\n
including Chavadi Ward.      PW6 admitted his signature in the<\/p>\n
counter foil, Ext.X8 relating to another ward, Kunnathukal ward.<\/p>\n
C.R.P NO. 490 OF 2009            Page numbers<\/p>\n
He also stated that his signature in the counter foil Ext.X8 relating<\/p>\n
to the Chavadi Ward was similar to his signature.          In cross<\/p>\n
examination, he further stated that he had cast his vote in<\/p>\n
Chavadi Ward and someone else had cast his vote in the other<\/p>\n
ward, Kunnathukal Ward. Taking note of his admission that the<\/p>\n
counter foil Ext.X8 relating to Kunnathukal Ward contain his<\/p>\n
signature and also on comparison of his signature in the counter<\/p>\n
foil with admitted signatures, the learned Munsiff concluded that<\/p>\n
he had cast double voting in more than one ward. Similar if not<\/p>\n
worse was the evidence of PW7 who admitted his signatures in<\/p>\n
the counter foils relating to Kunnathukal Ward and Chavadi Ward,<\/p>\n
Ext.X9 and Ext.X9(a) respectively.      He further stated in the<\/p>\n
election he had voted in two constituencies including Chavadi<\/p>\n
Ward . Though there was no challenge during the course of his<\/p>\n
examination that the person named in the counter foils Ext.X9 and<\/p>\n
Ext.X9(a) relating to the two wards is different, it is seen later a<\/p>\n
challenge was sought to be raised that the voter named in the two<\/p>\n
counter foils are different. Before me also it was contended that<\/p>\n
in the election petition, PW7 is shown as daughter of one<\/p>\n
Claramma but in the witness list he is shown as the son of one<\/p>\n
Victor. It is further contended that the witness examined as PW7<\/p>\n
was the driver of the petitioner in the election petition and his<\/p>\n
evidence is therefore unacceptable. The learned District Judge<\/p>\n
C.R.P NO. 490 OF 2009            Page numbers<\/p>\n
before whom also the same challenges had been pressed into<\/p>\n
service had repelled them observing that even when the 1st<\/p>\n
respondent in the election petition was examined as DW1, he had<\/p>\n
admitted that the father’s name of PW7 is Victor and he had no<\/p>\n
case that his mother’s name is not Claramma. He was the driver<\/p>\n
of the petitioner to the election petition does not curtail his right<\/p>\n
or interdict him from casting his vote to a candidate according to<\/p>\n
his choice. So his interestedness to the petitioner in the election<\/p>\n
petition as being his driver which was canvassed to impeach his<\/p>\n
evidence had been rightly repelled by the District Judge. Same<\/p>\n
challenge canvassed before me also dreserve to be taken note of<\/p>\n
only for its rejection.\n<\/p>\n
             9.    The evidence let in the case has conclusively<\/p>\n
established that two voters, PW6 and PW7, had cast double<\/p>\n
voting, both of them, in favour of the revision petitioner in<\/p>\n
Chavadi Ward and also in another ward, Kunnathukal Ward. So,<\/p>\n
two votes cast by them in favour of the revision petitioner had to<\/p>\n
be reduced from the double votes polled in favour of the revision<\/p>\n
petitioner as those votes are void. Section 76(3) of the Panchayat<\/p>\n
Raj Act mandates thus: “No person shall vote at a general election<\/p>\n
in more than one constituency of the same level, and if a person<\/p>\n
votes in morethan one such constituency, his votes in all such<\/p>\n
constituencies shall be avoided”. Deducting the two votes which<\/p>\n
C.R.P NO. 490 OF 2009             Page numbers<\/p>\n
had been cast by PW6 and PW7 in favour of the revision petitioner<\/p>\n
from the double votes polled in his favour, it was found that he<\/p>\n
has secured a vote less than the petitioner in the election petition.<\/p>\n
Since the petitioner in the election petition has secured more than<\/p>\n
one vote than the revision petitioner the learned Munsiff has set<\/p>\n
aside the election of the revision petitioner declaring the 1st<\/p>\n
respondent in the revision as the returned candidate from Chavadi<\/p>\n
Ward of Kunnathukal Grama Panchayat.           The decision of the<\/p>\n
learned Munsiff as confirmed by the District Judge in appeal is<\/p>\n
found to be proper, valid and correct. Challenges raised in the<\/p>\n
revision against the concurrent decision by the two courts below<\/p>\n
are found to be devoid of any merit. The revision is dismissed.<\/p>\n
                                            Sd\/-\n<\/p>\n
                                  S.S.SATHEESACHANDRAN
\n                                           JUDGE
\n                   \/\/TRUE COPY\/\/<\/p>\n
                                        P.A TO JUDGE
\nvdv<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court T.Vinod Kumar vs G. Anil Kumar on 8 March, 2010 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-178346","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nT.Vinod Kumar vs G. Anil Kumar on 8 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/t-vinod-kumar-vs-g-anil-kumar-on-8-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"T.Vinod Kumar vs G. 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