{"id":200497,"date":"2010-06-15T00:00:00","date_gmt":"2010-06-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kunnathadathil-kuttihassan-vs-m-abdul-kareem-kunhippa-on-15-june-2010"},"modified":"2016-06-18T11:43:34","modified_gmt":"2016-06-18T06:13:34","slug":"kunnathadathil-kuttihassan-vs-m-abdul-kareem-kunhippa-on-15-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kunnathadathil-kuttihassan-vs-m-abdul-kareem-kunhippa-on-15-june-2010","title":{"rendered":"Kunnathadathil Kuttihassan vs M.Abdul Kareem @ Kunhippa on 15 June, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Kunnathadathil Kuttihassan vs M.Abdul Kareem @ Kunhippa on 15 June, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRP.No. 185 of 2010()\n\n\n1. KUNNATHADATHIL KUTTIHASSAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. M.ABDUL KAREEM @ KUNHIPPA,\n                       ...       Respondent\n\n                For Petitioner  :SRI.T.SETHUMADHAVAN\n\n                For Respondent  :SRI.SAJU.S.A\n\nThe Hon'ble MR. Justice THOMAS P.JOSEPH\n\n Dated :15\/06\/2010\n\n O R D E R\n                   THOMAS P JOSEPH, J.\n\n                  ----------------------------------------\n\n                       C.R.P.No. 185 of 2010\n\n                   ---------------------------------------\n\n                 Dated this 15th day of June, 2010\n\n                                ORDER\n<\/pre>\n
      The returning officer declared petitioner as elected from<\/p>\n
ward No.11 of Othukkungal Grama Panchayath, in Malappuram<\/p>\n
District by a margin of 3 votes against his only rival, the<\/p>\n
respondent.    Respondent was not satisfied with the manner in<\/p>\n
which some voters were permitted to exercise their franchise and<\/p>\n
the rejection of one postal ballot which was cast in his favour.<\/p>\n
Challenging the election mainly on the said illegalities respondent<\/p>\n
filed petition before the Election Tribunal (O.P.No.45 of 2005). The<\/p>\n
Election Tribunal vide order dated 21-11-2009 found illegality in<\/p>\n
the manner in which 3 voters were permitted to vote through their<\/p>\n
companions and in the rejection of one postal ballot cast in favour<\/p>\n
of respondent. The votes exercised by those voters through their<\/p>\n
companions were found to be in favour of petitioner and the same<\/p>\n
was rejected. The postal ballot found to be illegally rejected by the<\/p>\n
returning officer was found cast in favour of respondent. That vote<\/p>\n
was accepted. Accordingly respondent was declared elected by a<\/p>\n
margin of one vote.        The order of the Election Tribunal was<\/p>\n
challenged by petitioner before learned District Judge, Manjeri in<\/p>\n
C.R.P.No.185 of 2010
\n                                : 2 :<\/span><\/p>\n
A.S.No. 47 of 2009 but, in vain. Judgment of learned District Judge<\/p>\n
is under challenge in this revision. Learned counsel for petitioner<\/p>\n
contends that finding of the courts below that there was illegality in<\/p>\n
3 (three) voters being permitted to vote through companions is not<\/p>\n
sustainable. According to the learned counsel there are no sufficient<\/p>\n
pleadings in the petition to support the evidence brought in by the<\/p>\n
respondent and hence no reliance can be placed on such evidence.<\/p>\n
Reliance is placed on the decisions in Om Prabha Jain Vs. Abnash<\/p>\n
Chand & Another (AIR 1968 SC 1083) and Vijayaraghavan Vs.<\/p>\n
Girija Surendran (2002(1) KLT Case No.110). It is also the<\/p>\n
contention of learned counsel that there is no proper identity of the<\/p>\n
voters referred to in paragraph 4 of the petition and the persons<\/p>\n
examined by the Advocate Commissioner and referred to by PWs.13<\/p>\n
and 14. It is also contended by the learned counsel that rejection of<\/p>\n
postal ballot contained in Ext.X1 is valid. At any rate the relevant<\/p>\n
documents are not brought into evidence in that those documents<\/p>\n
are not marked in evidence and hence cannot be relied on. Reliance<\/p>\n
is placed on the decision in Achuthananthan Vs. Francis (2001(1)<\/p>\n
KLT 740). Learned Senior Advocate appearing for respondent in<\/p>\n
response contended that there is sufficient evidence to show that 3<\/p>\n
persons were permitted to exercise their franchise through<\/p>\n
companions illegally and against the mandate of Rule 36 of the<\/p>\n
C.R.P.No.185 of 2010
\n                                  : 3 :<\/span><\/p>\n
Kerala Panchayath Raj (Conduct of Election) Rules (for short, “the<\/p>\n
Rules”). It is also contended that contention now advanced as to<\/p>\n
want of identity is not sustainable on account of intrinsic evidence on<\/p>\n
record and also since no such contention was raised in any of the<\/p>\n
courts below. It is the further contention of learned Senior Advocate<\/p>\n
that the postal ballot was rejected by the returning officer without<\/p>\n
any valid reason and courts below are right in concluding that<\/p>\n
respondent has won by a margin of one vote.\n<\/p>\n
      2.     It is not disputed that petitioner was declared elected by<\/p>\n
the returning officer from the ward in question by a majority of three<\/p>\n
(3) votes. Several grounds are set up in the petition in challenge of<\/p>\n
the election.     But, in the evidence, allegations are confined to<\/p>\n
allowing three persons to vote through companions and rejection of<\/p>\n
one postal ballot. Averments concerning the above grounds are set<\/p>\n
forth in paragraph 4, 5 and 12 of the election petition.<\/p>\n
      3.     In paragraph 4 of the election petition it is stated that<\/p>\n
Abdul Gafoor and Abdul Rahiman of Kunnathadathil house (serial<\/p>\n
Nos.490 and 492 respectively, in Ext.A2, voters list) are mentally<\/p>\n
retarded persons incapable of making a free decision of their own as<\/p>\n
to their choice of candidate at the election but against the mandate<\/p>\n
of Rule 36 of the Rules their votes were allowed to be cast through<\/p>\n
their companions who were active workers of the political party to<\/p>\n
C.R.P.No.185 of 2010
\n                                  : 4 :<\/span><\/p>\n
which petitioner belonged. Their votes cannot be reckoned for the<\/p>\n
purpose of deciding the winner at the election. In paragraph 5 of the<\/p>\n
election petition it is contended that Kunnathadathil Gafoor, serial<\/p>\n
No.490 in Ext.A2 though physically handicapped, had no incapacity<\/p>\n
to identify the symbol and mark the symbol on his own, he did not<\/p>\n
require the assistance of a companion as provided in Rule 36 of the<\/p>\n
Rules but his companion was permitted to cast the vote which is<\/p>\n
illegal. In paragraph 12 of the election petition averments concerned<\/p>\n
alleged illegal rejection of one postal ballot which was otherwise cast<\/p>\n
in his favour. Petitioner denied the allegations. So far as allegations<\/p>\n
in paragraph 4 of the petition regarding Abdul Gafoor and Abdul<\/p>\n
Rahiman of Kunnathadathil house is concerned, petitioner while<\/p>\n
admitting that the said persons were allowed to vote through<\/p>\n
companions denied that they were mentally unsound so as to be not<\/p>\n
able to decide on their own about their choice of candidate. Hence<\/p>\n
the returning officer has not committing any illegality in permitting<\/p>\n
the said persons to vote through their companions.          So far as<\/p>\n
averment in paragraph 5 of the election petition is concerned, it is<\/p>\n
contended by petitioner that Kunnathadathil Gafoor was in such a<\/p>\n
physical condition that he could not exercise his vote except with the<\/p>\n
assistance of a companion and hence there is nothing illegal in<\/p>\n
permitting him to vote with the assistance of a companion. When it<\/p>\n
C.R.P.No.185 of 2010
\n                                : 5 :<\/span><\/p>\n
came to the alleged rejection of postal ballot it is contended that<\/p>\n
postal ballot was not in accordance with the relevant rules and that<\/p>\n
the cover in form No.19 referred to a different booth and ward<\/p>\n
number and hence the returning officer was justified in rejecting the<\/p>\n
same.\n<\/p>\n
      4.     I have referred to the rival contentions concerning<\/p>\n
companion voting of Abdul Gafoor and Abdul Rahiman of<\/p>\n
“Kunnathadathil house”. PW14 is the father of Abdul Gafoor and<\/p>\n
Abdul Rahiman. PW13 was the Medical Officer of Primary Health<\/p>\n
Centre, Kottakkal and he issued Exts.A7 and A8, certificates relating<\/p>\n
to the mental condition of Abdul Gafoor and Abdul Rahiman (I will be<\/p>\n
referring to the contention of learned counsel for petitioner about<\/p>\n
identity of the said persons a bit later). Evidence of PW14 shows<\/p>\n
that his sons, Abdul Gafoor and Abdul Rahiman are suffering from<\/p>\n
congenital mental retardation. PW13 had occasion to examine the<\/p>\n
said persons. He is acquainted with the said persons and PW14 for<\/p>\n
quite sometime. PW13, after examination of the said Abdul Gafoor<\/p>\n
and Abdul Rahiman issued Exts.A7 and A8 certifying that Abdul<\/p>\n
Gafoor is suffering from mental retardation by 50% and Abdul<\/p>\n
Rahiman is suffering from the same illness by 45%. The Advocate<\/p>\n
Commissioner who conducted a voir dire examination of the said<\/p>\n
Abdul Gafoor and Abdul Rahiman as per order of the Election<\/p>\n
C.R.P.No.185 of 2010
\n                                 : 6 :<\/span><\/p>\n
Tribunal has concluded and reported that the said persons are<\/p>\n
mentally retarded and are not able to take decision of their own.<\/p>\n
Thus, it is with reference to the said evidence of PWs.13 and 14,<\/p>\n
Exts.A7 and A8 and the report of the Advocate Commissioner that<\/p>\n
courts below came to the conclusion that Abdul Gafoor and Abdul<\/p>\n
Rahiman are mentally retarded congenitally and on account of that<\/p>\n
were unable to take a decision of their own.\n<\/p>\n
      5.     Then the next question is whether the returning officer is<\/p>\n
legally correct in permitting them to vote through companions.<\/p>\n
PW.14 exercised the vote for Abdul Rahiman as companion while<\/p>\n
Noushad, a nephew of PW14 voted as companion for Abdul Gafoor.<\/p>\n
Under Rule 36 of the Rules, provision is made for companion voting.<\/p>\n
The provision says,<\/p>\n
                “if the Presiding Officer is satisfied that<\/p>\n
         owing to blindness or other physical infirmity an<\/p>\n
         elector is unable to recognize the symbols on the<\/p>\n
         ballot paper or to make a mark thereon without<\/p>\n
         assistance, the Presiding Officer shall permit the<\/p>\n
         elector to take with him a companion of not less<\/p>\n
         than eighteen years of age to the voting<\/p>\n
         compartment for recording the vote on the ballot<\/p>\n
         paper on his behalf and in accordance with his<\/p>\n
         wishes, and if necessary, for folding the ballot<\/p>\n
         paper so as to conceal the vote and inserting it<\/p>\n
         into the ballot box”.\n<\/p>\n
C.R.P.No.185 of 2010
\n                                  : 7 :<\/span><\/p>\n
                                        (emphasis supplied)<\/p>\n
Going by Rule 36, it leaves me in no doubt that grant of permission<\/p>\n
for companion voting is permissible only when the Presiding Officer<\/p>\n
is satisfied that due to blindness or other physical infirmity an elector<\/p>\n
is unable to recognize the symbols or make a mark thereon in<\/p>\n
accordance with his wishes.       The Rule also makes it abundantly<\/p>\n
clear that the companion is to vote on behalf of the elector and in<\/p>\n
accordance with the wishes of the elector. Rule 36 contemplates that<\/p>\n
the elector who is permitted to have companion voting must be able<\/p>\n
to form and express his wish as to the choice of the candidate but on<\/p>\n
account of blindness or other physical infirmity is unable to<\/p>\n
recognize the symbols or to make a mark on it. Rule 36 does not<\/p>\n
take in a case where on account of insanity, mental retardation or for<\/p>\n
any other reason the elector is unable to form or express his own<\/p>\n
wish as to the candidate for him he wishes to vote.          If such an<\/p>\n
interpretation is accepted it would mean that the vote of a mentally<\/p>\n
retarded or insane person is being cast not by the said elector but<\/p>\n
the companion concerned as the latter wishes. He is not carrying<\/p>\n
out the wish of the elector concerned. In short, it is not a case of the<\/p>\n
elector concerned voting. That is not the purport of Rule 36 of the<\/p>\n
Rules. No doubt, under Section 17 (1(b)) of the Kerala Panchayat<\/p>\n
Raj Act (for short, “the Act”) a person shall be disqualified for<\/p>\n
C.R.P.No.185 of 2010
\n                                   : 8 :<\/span><\/p>\n
registration in an electoral roll only if he is of unsound mind and<\/p>\n
stands so declared by a competent court. In this case there is no<\/p>\n
contention for any of the parties that any competent court has<\/p>\n
declared Abdul Gafoor and\/or Abdul Rahiman as persons of unsound<\/p>\n
mind. That only meant that the said persons were eligible or<\/p>\n
qualified for registration in the electoral roll but, did not mean that<\/p>\n
they came within the purview of Rule 36 for the purpose of<\/p>\n
companion voting. Evidence on record as I stated above and the<\/p>\n
courts below concurrently held is that on account of congenital<\/p>\n
mental retardation of Abdul Gafoor and Abdul Rahiman were not<\/p>\n
able to form or express their wish as to the candidate to whom they<\/p>\n
wanted to exercise their vote. In that situation Rule 36 of the Rules<\/p>\n
had no application and the Presiding Officer could not legally permit<\/p>\n
the said persons to vote through their companions. Finding of the<\/p>\n
courts below that permission granted for companion voting for Abdul<\/p>\n
Gafoor and Abdul Rahiman is contrary to Rule 36 of the Rules and<\/p>\n
hence is illegal does not call for interference on facts or in law.<\/p>\n
      6.     The more forcible argument advanced by the learned<\/p>\n
counsel for petitioner is that there is no proper identity of voters<\/p>\n
under Sl. Nos.490 and 492 of Ext.A2 referred to in the election<\/p>\n
petition. With Abdul Gafoor and Abdul Rahiman referred to in the<\/p>\n
evidence of Pws.13 and 14 and Exts.A7 and A8, who are Sl.Nos.542<\/p>\n
C.R.P.No.185 of 2010
\n                                 : 9 :<\/span><\/p>\n
and 543 of Ext.A2. According to the learned counsel, in paragraph 4<\/p>\n
of the election petition what is averred is that serial Nos.490 and<\/p>\n
492, ‘Abdul Gafoor and Abdul Rahiman of Kunnathadathil’ are not of<\/p>\n
sound mind, could not have exercised their votes and the Presiding<\/p>\n
Officer was not legally correct in permitting them to have companion<\/p>\n
voting but, the evidence brought in is in respect of Sl. Nos.542 and<\/p>\n
543 (Abdul Gafoor and Abdul Rahiman of Kunnakkaden house) who<\/p>\n
are not proved to be serial Nos.490 and 492 referred to in the<\/p>\n
election petition. There is no proof of identity as regards the persons<\/p>\n
referred to in paragraph 4 of the election petition as serial Nos.490<\/p>\n
and 492 and the persons referred to in the evidence ;of Pws.13 and<\/p>\n
14 and Exts.A7 and A8.\n<\/p>\n
      7.     The    argument    sounds     attractive   and    requires<\/p>\n
consideration.     Nowhere in the election petition it is stated that<\/p>\n
Abdul Gafoor and Abdul Rahiman referred to in paragraph 4 of the<\/p>\n
petition are ‘serial Nos.542 and 543’ in Ext.A2 or belong to<\/p>\n
‘Kunnakkaden house’. Instead averments in paragraph 4 relate to<\/p>\n
Abdul Gafoor and Abdul Rahiman (Sl. Nos.490 and 492 in Ext.A2) of<\/p>\n
‘Kunnathadathil house’. The question is whether it is the very same<\/p>\n
electors described as serial Nos.490 and 492 who are examined by<\/p>\n
the Advocate Commissioner referred to in Exts.A7 and A8 and<\/p>\n
regarding whom PWs.13 and 14 have given evidence. It is seen from<\/p>\n
C.R.P.No.185 of 2010
\n                                : 10 :<\/span><\/p>\n
the records that to examine Abdul Gafoor and Abdul Rahiman of<\/p>\n
‘Kunnathadathil house’ (Sl. Nos.490 and 492 in Ext.A2) respondent<\/p>\n
had taken out summons vide order on I.A.No.1955 of 2005 but that<\/p>\n
summons was returned with the endorsement that Abdul Gafoor and<\/p>\n
Abdul Rahiman refused to accept the summons stating that they are<\/p>\n
not residing in ‘Kunnathadathil house’ (as stated in Sl. Nos.490 and<\/p>\n
492 of Ext.A2) but are ‘Kunnakadan         Abdul Gafoor and Abdul<\/p>\n
Rahiman’ (as stated in Sl.Nos.542 and 543 of Ext.A2). Following<\/p>\n
that, respondent filed I.A.No.143 of 2007 to issue summons to the<\/p>\n
said persons in the house name of “Kunnakadan” (as described in<\/p>\n
serial Nos.542 and 543 of Ext.A2). That application was rejected by<\/p>\n
the Election Tribunal observing that there is no foundation to that<\/p>\n
effect in the election petition. Respondent challenged that order in<\/p>\n
this court in W.P.C.No.4824 of 2007. That writ petition was allowed<\/p>\n
by this court observing that respondent is at liberty to take summons<\/p>\n
to the said persons (in the house name ‘Kunnakkaden’). Accordingly<\/p>\n
summons was issued to the said persons. It is the said persons who<\/p>\n
were examined by the Advocate Commissioner. It is pertinent to<\/p>\n
note from the averments in paragraph 2 of the affidavit in support of<\/p>\n
I.A.No.143 of 2007 that it is stated that Abdul Gafoor and Abdul<\/p>\n
Rahiman (serial Nos.490 and 492 of Ext.A2) also have vote (in the<\/p>\n
same booth) as serial Nos.542 and 543 of Ext.A2. In the counter<\/p>\n
C.R.P.No.185 of 2010
\n                                 : 11 :<\/span><\/p>\n
statement filed by petitioner in response to the said affidavit there is<\/p>\n
no denial of the statement that Abdul Gafoor and Abdul Rahiman<\/p>\n
(voter Nos.490 and 492) do have vote as serial Nos.542 and 543 also.<\/p>\n
Instead, what is contended in paragraph 2 of the counter statement<\/p>\n
is that the application (I.A.No.143 of 2007) is filed to receive a list of<\/p>\n
witnesses – Kunnakadan Abdul Gafoor and Abdul Rahiman (who are<\/p>\n
voter Nos.542 and 543 in Ext.A2) and that there is no allegation<\/p>\n
against the said voters and hence they need not be summoned as<\/p>\n
witnesses. The identity referred to in paragraph 2 of the affidavit in<\/p>\n
support of I.A.No.143 of 2007 was not disputed by petitioner in his<\/p>\n
counter statement.\n<\/p>\n
      8.     PW.14   denied    that    he has    a   house    name     as<\/p>\n
‘Kunnathadathil’ and asserted that he is ‘Kunnakadan’ Moideenkutty.<\/p>\n
He deposed that his house No. is 340. As per his evidence in the said<\/p>\n
house, along with him his two sons, Abdul Gafoor and Abdul<\/p>\n
Rahiman, wife, Pathumma and daughter, Ami were residing. He<\/p>\n
stated that he has no other house in any other house number. It is<\/p>\n
interesting to note that in Ext.A2, serial Nos.488 to 492 are<\/p>\n
“Kunnathadathil” Moideenkutty, his wife Pathumma, sons,           Abdul<\/p>\n
Gafoor and Abdul Rahiman and daughter, Ami. When it came to<\/p>\n
serial Nos.540 to 543 (in Ext.A2), it refers to “Kunnakadan”<\/p>\n
Moideenkutty, wife, Pathumma and sons, Abdul Gafoor and Abdul<\/p>\n
C.R.P.No.185 of 2010
\n                                : 12 :<\/span><\/p>\n
Rahiman.      There is no difference in the name of father of<\/p>\n
Moideenkutty (there is however, slight difference in the age of the<\/p>\n
electors). There is no mention of daughter, Ami in serial Nos.540 to<\/p>\n
543. I find that though there is difference in the house number,<\/p>\n
house name and some difference in the age of persons described in<\/p>\n
serial Nos.488 to 492 and serial Nos.540 to 543, the name of electors<\/p>\n
given are the same. A further fact to be noted from the report of<\/p>\n
Advocate Commissioner is that the Commissioner examined<\/p>\n
“Kunnakadan” Abdul Gafoor and Abdul Rahiman in “their house<\/p>\n
bearing door Nos.301”. It is also seen from the report of Advocate<\/p>\n
Commissioner that he had issued notice to the counsel on both sides<\/p>\n
scheduling examination of the said persons “at their house bearing<\/p>\n
door No.301”. There was no objection to the examination of the said<\/p>\n
persons “in their house bearing door No.301”. On the other hand the<\/p>\n
deposition of the said witnesses recorded by the Advocate<\/p>\n
Commissioner are counter signed by counsel on both sides. Thus<\/p>\n
there is intrinsic evidence from the report of the Advocate<\/p>\n
Commissioner which is not challenged that Abdul Gafoor and Abdul<\/p>\n
Rahiman who were examined by the Advocate Commissioner are<\/p>\n
residents of the house bearing door No.301. It is seen from Ext.A2<\/p>\n
that in serial Nos.488 to 492, the new house number is given as ‘301’<\/p>\n
along with house No.340.       In serial Nos.540 to 543 the house<\/p>\n
C.R.P.No.185 of 2010
\n                                  : 13 :<\/span><\/p>\n
numbers given are 323, 478 and ‘340’. In other words in Ext.A2, for<\/p>\n
serial Nos.488 to 492 and 540 to 543, a common door number is<\/p>\n
given as “340”. PW14 claimed that his house No. is ‘340’. I stated<\/p>\n
that for serial Nos.488 to 492 a new house number is given as “301”<\/p>\n
ie, in respect of Kunnathadathil Moideenkutty, his sons Abdul Gafoor<\/p>\n
and Abdul Rahiman, wife Pathumma and daughter, Ami. Thus it is<\/p>\n
clear from Ext.A2 that PW14 and his sons Abdul Gafoor and Abdul<\/p>\n
Rahiman were residing in house No.301 (which also has door<\/p>\n
No.340) at the relevant time. It is that house number which the<\/p>\n
Advocate Commissioner has described in his report as door number<\/p>\n
301 in which witnesses, Abdul Gafoor and Abdul Rahiman are<\/p>\n
residing. Thus, it is clear that it is the very same persons referred to<\/p>\n
as serial Nos.490 and 492 who were examined by the Advocate<\/p>\n
Commissioner though, their name appeared in the very same voters<\/p>\n
list (Ext.A2) under serial Nos.542 and 543 as well. That is what the<\/p>\n
respondent has stated in paragraph No.2 of his affidavit in support of<\/p>\n
I.A.No.143 of 2007 (to issue summons to the said persons) and which<\/p>\n
I said, was not disputed in the counter statement of petitioner.<\/p>\n
       9.    I must also bear in mind, as the learned Senior Advocate<\/p>\n
appearing for respondent has argued that no contention regarding<\/p>\n
identity of said persons (between serial Nos.490 and 492 and 542<\/p>\n
and 543) was raised before the learned District Judge as revealed<\/p>\n
C.R.P.No.185 of 2010
\n                                 : 14 :<\/span><\/p>\n
from the memorandum of appeal. No such contention is seen raised<\/p>\n
in the Election Tribunal also. In the circumstances I am not<\/p>\n
impressed by the contention advanced by the learned counsel (for<\/p>\n
the first time in the revision petition) that there is dispute regarding<\/p>\n
identity which has been not addressed by the courts below or that<\/p>\n
the identity is not established.\n<\/p>\n
      10.    So far as contention regarding lack of pleadings is<\/p>\n
concerned that is concerning identity of serial Nos.490 and 492 and<\/p>\n
serial Nos.542 and 543.      The decisions relied on by the learned<\/p>\n
counsel for petitioner involved cases where allegations which<\/p>\n
ultimately affected the validity of election (grounds set up) were not<\/p>\n
pleaded in the and it was held that in the absence of specific plea,<\/p>\n
evidence cannot be looked into. It is the case of respondent that<\/p>\n
Abdul Gafoor and Abdul Rahiman who belonged to Kunnathadathil<\/p>\n
house are serial Nos.490 and 492 in Ext.A2 but when the summons<\/p>\n
was not accepted by them, respondent learned that names of the<\/p>\n
same persons figure in Ext.A2, voters list as serial Nos.542 and 543<\/p>\n
also in which address summons was issued as permitted by this court<\/p>\n
and the said elector were examined by the Advocate Commissioner.<\/p>\n
As such, it is not a case of lack of pleadings as learned counsel for<\/p>\n
petitioner puts it. Thus, it is on record that Abdul Gafoor and Abdul<\/p>\n
Rahiman referred to in the petition were mentally retarded, were not<\/p>\n
C.R.P.No.185 of 2010
\n                                  : 15 :<\/span><\/p>\n
able to form or express their own wish as to the candidate to whom<\/p>\n
they should exercise their vote through companions and hence<\/p>\n
permission granted for companion voting was against rule 36 of the<\/p>\n
Rules. I find little reason to interfere with the said finding.<\/p>\n
      11.    Then comes the case of Kunnathadathil Gafoor, examined<\/p>\n
as PW7. It is not disputed that he was permitted to vote through a<\/p>\n
companion. There is no dispute that PW1 is physically handicapped<\/p>\n
but the question is whether his physical disability is such that the<\/p>\n
Presiding Officer was justified in permitting companion voting for<\/p>\n
him. There is no case or evidence that PW7 had any blindness or<\/p>\n
mental incapacity which disabled him from recognizing the symbols<\/p>\n
on the ballot paper or making a mark on it. Evidence of PW7 shows<\/p>\n
that he was running a telephone booth and was riding a three<\/p>\n
wheeler (scooter) during the relevant time. He was physically carried<\/p>\n
to the booth by the companion and the companion was permitted to<\/p>\n
exercise his vote. But evidence is that PW7 had no difficulty to<\/p>\n
recognize the symbols on the ballot paper and make a mark on it on<\/p>\n
his own. His physical disability was only for walking. It is seen from<\/p>\n
the deposition of PW.7 that he has put his signature on each page. It<\/p>\n
is evident that PW7could have recognized the symbols on the ballot<\/p>\n
paper and made a mark on it on his own without the assistance of<\/p>\n
any companion, once he was brought into the polling booth.<\/p>\n
C.R.P.No.185 of 2010
\n                                 : 16 :<\/span><\/p>\n
Assistance was required only to take down to the polling booth. Rule<\/p>\n
36 of the Rules therefore had no application in the case of PW7.<\/p>\n
Hence permitting PW7 to vote through companion was against Rule<\/p>\n
36 and hence illegal. Courts below found that procedure adopted by<\/p>\n
the Presiding Officer in that regard is illegal. I have no reason to<\/p>\n
disagree.\n<\/p>\n
      12.    What remained is the validity of rejection of the postal<\/p>\n
ballot.  The Presiding Officer rejected that postal ballot for the<\/p>\n
reason that the outer cover in form No.19 (marked Ext.X1) contained<\/p>\n
a different endorsement regarding ward number. It is not disputed<\/p>\n
that the ward in question is ward No.11 (of Othukkungal Grama<\/p>\n
Panchayath) and the booth name is ‘Valiyaparamba’.      On the outer<\/p>\n
side of cover in form No.19 the ward number stated is ‘No.12’ but<\/p>\n
the booth name is written correctly as ‘Valiyaparamba’. Rule 50 of<\/p>\n
the Rules speaks about postal ballot.       That provision says that<\/p>\n
Presiding Officer shall before commencement of counting of ballot<\/p>\n
papers in the ballot box deal with the postal ballot papers in the<\/p>\n
manner provided therein. As per sub rule (c) if the declaration is not<\/p>\n
valid, the postal ballot is to be rejected. In this case only defect<\/p>\n
Presiding Officer noticed so far as the postal ballot under challenge<\/p>\n
is that on the outer side of the cover in Form No.19 a different ward<\/p>\n
number was written but, admittedly, by the Presiding Officer himself.<\/p>\n
C.R.P.No.185 of 2010
\n                                 : 17 :<\/span><\/p>\n
Name of the ward stated was correct. Inner cover contained the<\/p>\n
declaration in Form No.16 made by the elector which admittedly<\/p>\n
related to the ward in question.       In the circumstance Presiding<\/p>\n
Officer was not justified in rejecting the postal ballot for the reason<\/p>\n
of the mistake (may be, inadvertent) he committed in making<\/p>\n
endorsement on the outer cover in Form No.19 regarding the ward<\/p>\n
number. Rejection of the postal ballot paper was therefore illegal as<\/p>\n
the courts below also held.\n<\/p>\n
      13.    Learned counsel for petitioner has an argument that<\/p>\n
relevant election papers are not exhibited in evidence and hence the<\/p>\n
same cannot be looked into.       It is in support of that contention<\/p>\n
learned counsel has relied on the decision in Achuthananthan Vs.<\/p>\n
Francis (supra). Mere production of seal box of postal papers or<\/p>\n
documents forming part of recording of election was held to be not<\/p>\n
sufficient. In this case the relevant votes, postal or otherwise or its<\/p>\n
counter foils have not been exhibited in evidence but paragraph 24<\/p>\n
and 25 of the order of Election Tribunal state the procedure adopted<\/p>\n
by the election Tribunal in this regard.      It is stated that in the<\/p>\n
presence of both parties and their counsel the envelope in Form<\/p>\n
No.19 (marked Ext.X1) was opened and the postal ballot in it was<\/p>\n
identified through PW4 (Presiding Officer) who was recalled and<\/p>\n
further examined. It is true that PW4 stated that at the time of his<\/p>\n
C.R.P.No.185 of 2010
\n                                   : 18 :<\/span><\/p>\n
earlier examination Ext..X1 cover was seen not opened but at the<\/p>\n
time of his further examination that cover was seen opened. Reason<\/p>\n
is that in the meantime as permitted by this court in W.P.C.No.7412<\/p>\n
of 2007 the Election Tribunal had opened the relevant papers in the<\/p>\n
presence of parties and counsel as stated in paragraph 24 of its<\/p>\n
order. Similar was the case with respect to the votes cast by Abdul<\/p>\n
Gafoor, Abdul Rahiman and PW7.             That was also done in the<\/p>\n
presence of both parties and their counsel.              The proceedings<\/p>\n
prepared by the Election Tribunal          in that regard is signed by<\/p>\n
counsel on both sides. In that situation, petitioner has no reason to<\/p>\n
complain that the said documents are not exhibited in evidence and<\/p>\n
hence cannot be looked into. I reject that contention.<\/p>\n
      14.    On the question whether finding entered by the courts<\/p>\n
below have materially affected result of the election, following facts<\/p>\n
and figures assume importance.\n<\/p>\n
Votes polled by the candidates as declared by the Presiding Officer (PW.4)<\/p>\n
      Petitioner    – 312<\/p>\n
      Respondent – 309<\/p>\n
      (petitioner was declared elected by a majority of three votes)<\/p>\n
The Election Tribunal after referring to the ballot papers of Abdul<\/p>\n
Gafoor, Abdul Rahiman and PW7 has held that those votes went in<\/p>\n
favour of petitioner. Those three votes being illegally cast, are to be<\/p>\n
C.R.P.No.185 of 2010
\n                                  : 19 :<\/span><\/p>\n
excluded. That means, less those three votes (which were cast in<\/p>\n
violation of Rule 36 of the Rules) votes polled by the petitioner came<\/p>\n
to 309 (312-3). The postal ballot which was illegally rejected by the<\/p>\n
PW4, the Presiding Officer was cast in favour of respondent. It has<\/p>\n
to be counted in favour of the respondent. It brought the votes<\/p>\n
polled by the respondent to 310 (309+1). That means, respondent<\/p>\n
has won the election by one vote.          It follows that the illegality<\/p>\n
committed at the election as found above has materially affected the<\/p>\n
result of election.  In the circumstances I do not find reason to<\/p>\n
interfere with the judgment\/order under challenge.<\/p>\n
      The revision petition fails. It is dismissed.\n<\/p>\n<\/p>\n
                                 (THOMAS P JOSEPH, JUDGE)<\/p>\n
Sbna\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Kunnathadathil Kuttihassan vs M.Abdul Kareem @ Kunhippa on 15 June, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRP.No. 185 of 2010() 1. KUNNATHADATHIL KUTTIHASSAN, … Petitioner Vs 1. M.ABDUL KAREEM @ KUNHIPPA, … Respondent For Petitioner :SRI.T.SETHUMADHAVAN For Respondent :SRI.SAJU.S.A The Hon’ble MR. Justice THOMAS P.JOSEPH Dated :15\/06\/2010 O R […]<\/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-200497","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nKunnathadathil Kuttihassan vs M.Abdul Kareem @ Kunhippa on 15 June, 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\/kunnathadathil-kuttihassan-vs-m-abdul-kareem-kunhippa-on-15-june-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kunnathadathil Kuttihassan vs M.Abdul Kareem @ Kunhippa on 15 June, 2010 - 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