(1.) THE general election to the Legislative Assembly of the State of Kerala was held on 27/04/1996. THE appellant, the respondent No. 1 and the respondent No. 2, contested election from No. 99 Mararikulam Legislative Assembly Constituency (Alappuzha District). Counting took place on 8-5-1996 and continued up to the wee hours of 9-5-1996. THE respondent No. 1 was declared elected defeating his nearest rival candidate, the petitioner, by a margin of 1965 votes. THE distribution of votes was as under :- <FRM>JUDGEMENT_337_JT2_2001Html1.htm</FRM>
(2.) ON 22-6-1996 the appellant filed an election petition before the High Court of Kerala putting in issue the election of the respondent No. 1 mainly on three grounds, namely, (i) corrupt practice committed in the interest of returned candidate by his agents, election agents or the returned candidate himself; (ii) the improper reception of votes which were void, and (iii) non-compliance with the provisions of the Constitution and the provisions of the Representation of the People Act 1951. It was also alleged that the result of the election, in so far as it concerns the returned candidate, was materially affected on account of the grounds alleged in the petition, as abovesaid. The reliefs sought for were - declaring the election of respondent No. 1 as void and declaring the appellant as elected.
(3.) AT the hearing, Dr. A. M. Singhvi, the learned senior counsel for the appellant submitted, while attacking the judgment of the High Court, that in order to make out a case for re-count a 'prima facie case' was required to be shown leaving the issue as to material affect on the result of the election to be determined when the result of the re-count was available but the High Court has committed a grave error of law in insisting on the election petitioner making out a 'good case' for re-count. In other words, the High Court has insisted on demanding a higher degree of proof for claiming a re-count, which error has resulted in vitiating the judgment of the High Court. In the submission of the learned senior counsel for the appellant the following three circumstances were shown to exist prima facie by the election petitioner on the evidence adduced by him :- (i) that 2100 excess ballot papers were got printed and retained by Shri Ayyappan Pillai, the Taluk Tehsildar, who was also the Election Registration Officer and was shown to have an affiliation or intimacy with the political party to which the respondent No. 1 belongs, raising a high degree of probability of such excess ballot papers having been misutilised to the advantage of the respondent No. 1; (ii) that on opening the ballot boxes it was found that the number of ballots polled were in excess of the ballot papers issued to different polling stations - a strong pointer to that fact of gross irregularity having been committed at the polling; and (iii) that a number of ballot papers issued and used for election of parliamentary candidates were found to have been mixed up with legislative assembly ballot papers. In the submission of the learned senior counsel for the election petitioner/appellant, the abovesaid facts made out a sufficient ground for directing a recount of ballot papers and if only re-count would have been directed the election petitioner/appellant would have been found to have secured the highest number of votes and should have been declared elected. The learned counsel for the respondent No. 1 has disputed the correctness of the submissions so made and submitted, supporting the judgment under appeal, that the appellant was not entitled to any relief and the appeal was liable to be dismssed. We will examine the worth of the contention so advanced by testing if any of three circumstances have been shown to the satisfaction of court to so exist as to enable a finding of prima facie case for ordering re-count being recorded.