BINDHU @ BINDHU SURESHKUMAR Vs. VRINDA RADHAKRISHNAN

JUDGEMENT

(1.) This petition is in challenge of Ext. P6, order dated 05.07.2011 in O.P. (E1.) No. 18 of 2010 of the court of learned Munsiff, Wadakkancherry. By the impugned order on Ext. P4, application filed by the first respondent learned Munsiff directed the Electoral Officer to produce the documents specified in Ext. P4, application. The issue arises in an election petition preferred by the first respondent challenging election of petitioner from Ward No. XIII of Panajal Grama Panchayath in the election held on 25.10.2010. It is not disputed that as per the declared result, petitioner got 334 votes as against 328 votes secured by the first respondent. Second respondent got 217 votes. Seventeen (17) votes were declared invalid. In paragraph 2 of Ext. P1, election petition first respondent stated that in the course of counting on account of the biased attitude of the counting officials, four votes which ought to have been counted in favour of the first respondent were counted in favour of petitioner and two votes which ought to have been counted in favour of the first respondent were counted in favour of the second respondent. It is further alleged that one vote of the first respondent which was valid was improperly rejected as invalid. If counting officials had acted in a fair manner, the above seven votes should have been counted in favour of the first respondent and herself declared elected. First respondent prayed that election of petitioner from Ward No. XIII of Punjab Grama Panchayat be declared invalid and that herself be declared elected. Petitioner filed counter to Ext. P1, election petition denying various allegations in the election petition. While so, the first respondent filed Ext. P4, application to direct the Electoral Officer to produce the documents referred to therein. That application was objected by petitioner but the objections were overruled and the application was allowed by Ext. P6, order which is under challenge.

(2.) Learned counsel for petitioner contends that Ext. P6, order is prima facie illegal and unsustainable. It is contended that there is no prayer for recounting of votes, not to say that any issue regarding recounting is framed by the learned Munsiff (Ext. P3 are the issues framed by learned Munsiff). It is also contended that right to challenge the election is the conferment of statute and hence it must be in strict compliance with the provisions of the statute. A mere allegation regarding improper counting of votes is not sufficient to enable the Election Tribunal to call for the records and examine the same. There must be prima facie proof regarding the truth of allegations made in the petition. It is also necessary that there must be specific allegations in the election petition concerning invalidity of counting or improper rejection of votes. In the absence of such specific allegations and prima facie evidence regarding truth of allegations the Election Tribunal is not authorized or entitled to pass orders like Ext. P6. Learned counsel placed reliance on the decisions in P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen, 1989 1 SCC 526, Makhan Lal Bangal v. Manas Bhunia, 2001 2 SCC 652 and Kattinokkula Muralikrishna v. Veeramalla Kotewsara Rao, 2010 1 SCC 466.

(3.) In response it is contended by the learned counsel for first respondent that secrecy in the election must give way to purity at election. It is contended that there are sufficient allegations in the election petition which would warrant a recounting and inspection of votes as requested by first respondent in Ext. P1, election petition. Learned counsel has referred me to the various averments in Ext. P1, election petition. It is contended that in view of specific allegations made in Ext. P1, election petition the mere fact that in the relief portion there is no prayer for recounting or that no issue regarding recounting is framed does not prevent the learned Munsiff from passing order like Ext. P6. Learned counsel has placed reliance on the decisions in Shashi Bhushan v. Prof. Balraj Madhok,1972 KHC 724, Sunil Kumar v. K. Sudhakaran,1992 KHC 266 and Prabhakaran v. Sundaran Nair,2002 KHC 1012.