KRISHNAPILLAI Vs. ANIL KUMAR

JUDGEMENT

(1.) Election of members to the Kottarakkara Panchayat took place on 23-1-1988. In pursuance to the notice issued by the Returning Officer under R.10 of the Kerala Panchayat (Election of Members) Rules, petitioner and respondents 1 to 6 filed nomination papers for election. In the poll held on 23-1-1988 first respondent was declared elected by the Returning Officer from Ward No.XI, with a margin of two votes over the petitioner. Petitioner then filed O.P.4/88 before 7th respondent for declaring the election of first respondent as void. He also prayed for a declaration that he was duly elected as member of the Panchayat from Ward No.XI. 7th respondent dismissed that application on the ground that the petition filed was not accompanied by a list as provided by clause (5) of R.5 of the Kerala Panchayats (Decision of Election Disputes) Rules, 1963, hereinafter referred to as 'the Rules' and also on the ground that it is barred by limitation as per sub-section (2) of S.22 of the Kerala Panchayat Act, 1960, hereinafter referred to as 'the Act'. The correctness of that decision is under challenge.

(2.) Polling was held on 23-1-1988. Result of the election was declared on 24-1-1988. As per S.22(2) of the Act an application challenging the validity of election should be filed before the Munsiff having jurisdiction, within 15 days after the date of the declaration of the result of the elect ion. So, the petition challenging the election should have been filed on or before 8-2-1988. In the instant case petitioner did file the application on 2-2-1988, well within the period of 15 days after the date of declaration of the result of the election. So, learned Munsiff was clearly in error in dismissing the application as barred by limitation.

(3.) Now the question that a rises for consideration is whether the decision of the learned Munsiff that the application is not maintainable on account of the violation of R.5(5) of the Rules is correct or not. Ext. P2 is the petition filed before the Munsiff. Grounds alleged for interfering with the declaration of first respondent's result are stated as follows: The result of the election has been materially affected by the non compliance with the provisions of the Act and the Kerala Panchayats (Election of Members) Rules, 1962, and the Kerala Panchayats (Decision of Election Disputes) Rules, 1963 and improper reception and rejection of votes. Nomination paper of first respondent ought to have been rejected. First respondent is not a qualified candidate as he has not completed 25 years of age on the date of filing the nomination, as prescribed under the Act. Before rejecting the ballot papers as invalid, the Returning Officer did not allow the petitioner or his counting agent to inspect them. Petitioner or his counting agent was not informed of the grounds for rejecting those ballot papers. All the votes cast in favour of the petitioner were not counted in determining the total of the number of votes secured by the petitioner. The post ballot papers were not scrutinised properly. Votes which were to be rejected as invalid were counted as valid in favour of first respondent. Valid votes in favour of the petitioner were rejected as invalid votes. After counting was over petitioner filed application for re-counting. Then there was differences in the number of votes. Very material irregularities have crept in the process of counting the votes. Hence the election of first respondent as the member representing Ward No. XI is to be declared void and the petitioner may be declared as elected as the member representing Ward No. XI.