PADMANABHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner claims to be a voter of Ward No. XI of ulikkal Panchayat. He has challenged S. 79 of the Kerala Panchayat Raj Act by stating that the same is violative of the fundamental rights guaranteed to him under the Constitution of India. THE challenged provision, according to him, is ultra vires of the Constitution of India. THE basis of the case of the petitioner as could be understood from the submissions is as follows: As per the voters list, in Ward No. XI of the Panchayat there are 1480 eligible voters of whom 1100 exercised their franchise. Out of the 15 postal ballot votes, the 4th respondent got 10 votes and the third respondent got 4 votes. THE 5th respondent got 1 vote. It is stated that the third respondent secured 538 votes and the 4th respondent received 532 votes. When postal votes were added, they received the equal number of votes, namely 543. Two ballot papers were found missing. As there was a tie, the Returning officer, by way of toss, declared the third respondent as the elected member from Ward No. XI.

(2.) THE petitioner has fielded an argument that in the case of a tie drawing lots is unjustified. He states that an election is being held so as to find the most popular candidate and the person who gets the majority of votes is to be declared elected. S. 79 of the Kerala Panchayat Raj act authorises the Returning Officer to draw lots if it is found after the counting of the votes that equal number of votes are polled in favour of two candidates. According to the petitioner, adding one extra vote by way of lot to the tally of votes obtained by a candidate is illegal and against the basic provisions of the Constitution. THE petitioner submits that the people of the panchayat, who had exercised their franchise in favour of the 4th respondent are now being deprived of their right to be represented by a person of their choice as the 5th respondent is declared as the person elected. S. 79 facilitated for this and it is submitted that this runs contrary to the rights guaranteed under Art. 19 of the Constitution.

(3.) THERE might be an element of arbitrariness in the method suggested by statute. But life itself at times throws challenges, on the boarder lines of arbitrariness. I can see S. 79 only as a piece of law, which is least objectionable, to come over a situation of impasse. The principle of casting vote is not alien to election; it is resorted to, so as to get across lawlessness. Lots, or spin of coin may decide the fate of an aspirant, but when circumstances conspire, the above is accepted as a democratic, civilised method.