WALTER D PAUL Vs. UMMER

JUDGEMENT

(1.) THIS writ petition is presented by Sri. Walter D. Paul, who was elected as the President of the Mangalapuram Panchayat, challenging the decision of the Munsiff, Attingal, dated 24th January, 1989 setting aside his election and declaring elected in his place respondent No. 1, sri. K. S. Ummer, as the President of the said Panchayat. Before we examine the principal legal contentions we shall address ourselves to the relevant facts and the findings.

(2.) MANGALAPURAM Panchayat consists of 11 elected members. Elections were held on the 23rd January, 1988, at which the petitioner, the first respondent and others were declared elected. On the 8th of February, 1988, election to the office of the President was held. The petitioner and the first respondent were the only two candidates. The Block Development Officer, the 2nd respondent, presided over the meeting and conducted the election. After the election, he counted the votes. He found that there are 9 valid votes out of which six are in favour of the petitioner and three in favour of the first respondent. On the ground that the petitioner has secured the majority of the valid votes cast, he declared the petitioner as duly elected as the President. The petitioner has been functioning as the President of the Panchayat in pursuance of the said election. The first respondent challenged the election of the petitioner under S. 24 (1) (d) of the Kerala Panchayats Act, 1960 (hereinafter referred to as the Act), read with the relevant rules. The principal contention of the first respondent in the said election petition was that the six votes counted in favour of the petitioner are all invalid and were therefore liable to be rejected under R. 8 of the Kerala Panchayats (Election of president and Vice-President) Rules, 1963. His case is that the six members of the Panchayat having put tick mark against the name of the petitioner in the ballot papers and not'x' mark as required by R. 7 the said six ballot papers were required to be rejected as invalid votes. As the three members of the panchayat have put 'x' mark in the ballot papers against the name of the first respondent, it was contended, that all those ballot papers were valid. Thus, it is the case of the first respondent that there were only three valid votes all of which showed that the votes were exercised in favour of the first respondent. As the first respondent has thus secured all the valid votes cast in the election, he should have been duly declared elected as President in the election.

(3.) IN support of the case of the petitioner in this behalf the Block Development Officer has been examined as C. P. W. 2. He has in categorical terms stated in his evidence that he had instructed all the members of the Panchayat, before the election, that they are free to choose either the tick mark or the 'x' mark to exercise their preference in the ballot papers. He has stated that the real purpose of putting a mark on the ballot papers is to signify the preference of the candidate. He therefore proceeds to state that it does not matter as to what mark is chosen for signifying one's preference. He has stated that he thought that there is nothing wrong to instruct the members of the Panchayat that they can choose either put tick mark or cross mark in the ballot papers. Though the Block Development Officer has been cross-examined, we do not find anything worthwhile to shake the testimony of the Block Development officer in regard to this aspect of the matter is concerned. There is contemporaneous official record maintained by the Block Development Officer wherein the summary of the proceedings has been recorded in Ext. P2, and the relevant statement in the same reads: "the Chairman informed the members that they should vote by secret ballot and they should vote by putting, either 'x' mark or 'u' mark against the name of the candidate for whom he wants to vote. Voting followed" The petitioner has also stated about the instructions given by the Block Development Officer in this behalf, though the first respondent does not admit the issuance of such instructions. We have therefore no hesitation in accepting the evidence of the Block Development Officer and ext. P2 and holding that the learned Munsiff was justified in coming to the conclusion that the Block Development Officer had instructed all the members of the Panchayat before the election took place that they are free to put either 'tick' mark or 'cross' mark against the name of the candidate for whom they want to vote. The finding recorded by the Munsiff in this behalf is not vitiated in any manner and is therefore liable to be affirmed.