M R GOPALAKRISHNAN Vs. THACHADY PRABHAKARAN

JUDGEMENT

(1.) This appeal under Section I 16-A of the Representation of the People Act, 1951 (hereinafter referred to as the Act) has been directed against the judgment of the High court of Kerala dismissing the electionpetition of the appellant whereby he had challenged the election of Respondent 1 as a member of Kerala Legislative Assembly from Constituency No. 104 Kayarnkulam, and for a further declaration that the appellant was duly elected for the said seat for which the election was held on 12/6/1991 and the result of which was declared on 16/6/1991.

(2.) In all there were eight candidates in the field i. e. the appellant and Respondents 1 to 7 who contested the said election for the Legislative Assembly seat from 104 Kayarnkulam Constituency. The appellant was a candidate fielded by the Communist Party of India (Marxist). Respondent 1 herein was the candidate sponsored by the Indian National Congress which was a constituent party of the United Democratic Front. The total number of votes polled in the said election were 97,969 out of which 1375 were rejected as invalid votes and 96,594 votes were received as valid votes. At the end of the final counting which took place on 16/6/1991 the result was declared and Respondent 1 was returned as a successful candidate by a margin of 33 votes against his nearest rival, the petitioner/appellant herein. The main contest was between the appellant and Respondent 1. The appellant had polled 46,649 votes while Respondent 1 had polled 46,682 votes and thus Respondent 1 had won the election by a margin of 33 votes over his nearest rival, the petitioner/appellant herein and, therefore, he was declared elected.

(3.) The appellant challenged the election of the returned candidate Respondent 1 herein by filing an election petition under the relevant provisions of the Act, in the High court of Kerala on several grounds. It was alleged by the appellant that the counting of votes for the Legislative Assembly Constituency as well as counting of votes for the Kayarnkulam segment of Mavelikara Parliamentary Constituency both took place simultaneously in the same hall which was of the size of 80 x 20 feet and as there were several tables and chairs in the said counting hall and the counting agents of all the candidates and other officials were present in the hall, it became crowdy and the sorting out of bundles of ballot papers was done hastily and, therefore, it was not possible for the counting agents of the petitioner/appellant to carefully keep a track of the process of sorting out. It was, therefore alleged that a reasonable opportunity was not given to the appellant's agents to note and satisfy themselves that the bundles were really of the candidates for whom the votes were cast or the correctness of the ballot papers in each bundle. It was alleged that the Returning Officer rejected the votes as invalid in spite of the protest by the petitioner/appellant's election agent. The petitioner/appellant's election agent made an application for re-count alleging specific irregularities in the counting but the same was unreasonably rejected by the Returning Officer and Respondent 1 was declared elected. It has been further alleged that on 17/6/19911 the petitioner/appellant submitted an application to the District Collector, Alapuzha for re-counting and the election agent of the petitioner/appellant had also sent an application to the Chief Election Officer pointing out the irregularities in the counting. The petitioner/appellant further alleged that several postal ballots were rejected without valid reason and the votes cast in favour of the appellant were treated as invalid and in many polling stations the figure in the ballot paper account did not tally.