KUNHIRAMAN Vs. KRISHNA IYER

JUDGEMENT

(1.) This is an appeal under S.116A of the Representation of the People Act, 1951, for short, the Act of 1951. The appellant was the respondent before the Tribunal, and, to save confusion, we shall hereafter refer to him as he is referred to in the order of the Tribunal, namely, as the respondent, and to the respondent here, who was the petitioner before the Tribunal, as the petitioner.

(2.) At the last general election to the State Assembly, the petitioner, an independent candidate supported by the Communist Party, and the respondent, a Congress-man supported by the Congress, the P. S. P. and the Muslim League (compendiously known as the United Front) were the contestants from the Tellicherry Constituency. The poll was on the 1st February 1960, and, on the following day, the Returning Officer declared the respondent duly elected by a majority of 23 votes, as having secured 28,380 votes against the petitioner's 28,357 votes. On the 15th March 1960, the petitioner instituted the present petition claiming a declaration that the election of the respondent was void and claiming the further declaration that he himself had been duly elected.

(3.) The grounds alleged (to indicate them very briefly, by catchwords as it were, leaving out those that are no longer in issue) were corrupt practices, miscount, double voting, the allegation being that the same persons voted twice for the respondent taking advantage of their names appearing in two places in the electoral roll, tendered votes, presumably in favour of the petitioner, following upon the exercise of the particular elector's vote by an impostor, and, to use a convenient transferred epithet, minor votes in favour of the respondent. In June the respondent gave notice under sub-s.(1) of S.97 of the Act of 1951 accompanying the notice with a recriminatory statement under sub-s.(2) wherein he sought the declaration that, if the petitioner had been returned, his election would have been void on grounds similar to that alleged by the petitioner excepting that there was no allegation of a misconduct. On the 11th August 1960, the petitioner made an application, I. A. 30 of 1960 for a recount. This was opposed by the respondent but was allowed by the Tribunal by an order dated the 18th October 1960. The respondent thereupon came to this court seeking a writ to quash that order, but his application for the purpose was dismissed on the 14th November. Thereafter, from the 28th November to the 2nd December, the Tribunal conducted a scrutiny and recount excluding from the scrutiny, in terms , of its order of the 18th October, the ballot papers which had been rejected by the Returning Officer. As a result of this scrutiny, the Tribunal rejected eight ballot papers [on what grounds does not appear from its order or from any proceeding to which our Attention has been drawn, but presumably on the ground of uncertainty falling under R.57(2A) of the Representation of the People (Conduct of Elections and Election Petitions) Rules 1956, the Election Rules for short]; and, as a result of the recount of the remaining ballot papers, it found that the respondent had secured 28,369 votes against the petitioner's 28,360 votes thus reducing his majority from 23 to 9.