RAJEENA GEORGE Vs. LISSY YACOB

JUDGEMENT

(1.) Concurrent decision rendered by the court below setting aside the election of the revision petitioner, the returned candidate from a Ward in Mazhuvannur Grama Panchayat is challenged in the revision. The revision petitioner and respondents 1 and 4 contested for election as a member from the 15th Ward in the above Panchayat in the general election to the Panchayats held on 24.9.2005. On counting of votes, the revision petitioner and the first respondent got. equal number of votes and the 4th respondent got votes much less than both of them. One ballot paper cast in the polling was found missing in the counting. The Returning Officer conducted lots to determine the elected candidate from the two, the revision petitioner and also the 1st respondent, who had secured equal votes. The lot fell in favour of the revision petitioner and, accordingly, adding one additional vote in her favour, Smt. Rajeena, the revision petitioner was declared elected. Her election was impeached by the 1st respondent filing an Election Petition as O.P. (Election) No. 3/05 before the Munsiff's Court, Perumbavoor. Among other allegations impeaching the election of the revision petitioner, it was contended that the Returning Officer removed one ballot paper in which vote had been cast in favour of the petitioner (1st respondent) and that it was on account of collusion and conspiracy with the 3rd respondent (revision petitioner) that respondent was declared elected after taking lots. It was further imputed that lots were taken after noticing of the missing of one ballot paper and discarding the mandatory provisions as to reporting of such missing of ballot paper before the Election Commission and awaiting further directions/orders in the matter for proceeding further with respect to the election held in that particular ward.

(2.) The revision petitioner, who was the 3rd respondent in the above Original Petition, filed a statement repudiating the allegations levelled in the petition impeaching her election. The 1st respondent in the petition, who was the Returning Officer also filed a statement traversing the allegations raised in the Writ Petition imputing partiality of favouring the 3rd respondent, the candidate who was declared elected. The learned Munsiff, after considering the materials produced and hearing the counsel on both sides, found merit in the case canvassed by the petitioner in the Election Petition that there was non-compliance of the mandatory procedural requirements covered by Section 78 of the Panchayat Raj Act (for short 'the Act'), when a ballot paper was found missing during the counting of votes. In such a contingency on detection of missing of ballot paper and where equal votes had been obtained by two candidates in the election, according to the learned Munsiff, it was imperative for the Returning Officer to report the matter to the Election Commission and a wait for further directions as envisaged under Section 78 of the Act. In that view of the matter, the learned Munsiff concluded that there was violation of the mandatory procedural requirements by the Returning Officer in conducting the lots, which led to declaring of the revision petitioner as the returned candidate, and the election so held was declared to be void. Setting aside the election of the returned candidate, the learned Munsiff allowed the petition. Challenge raised by the returned candidate (revision petitioner) against the decision of the learned Munsiff preferring an appeal before the District Court was turned down by the learned District Judge concurring with the views taken by the inferior court. The revision petitioner has filed the present revision challenging the propriety and correctness of the concurrent decision rendered by the two courts below.

(3.) I heard the counsel on both sides. The one and only question that emerge for consideration in the present revision, in the given facts of the case, is whether the two courts below were justified in holding that there was flouting of the mandatory requirements under Section 78 of the Act by the Returning Officer in proceeding with the conducting of lot to determine which among the two candidates who have secured equal votes was to be declared as the returned candidate, when a ballot paper polled was found missing in the counting of the votes.