VIJAYAN Vs. LAKSHMI .M.

JUDGEMENT

(1.) Is it an invariable rule that the serial number of the ballot papers should be disclosed in the election petition itself in the case of improper rejection of Valid Votes or improper reception of Void Votes I heard Mr. T. Krishnanunni, Senior Advocate on behalf of the election petitioner and Mr. K. Gopalakrishna Kurup, Senior Advocate on behalf of the returned candidate on this pivotal issue. The dispute concerns the election to Ward No. VIII of Rajakumari Grama Panchayat in Idukki District held on 25.10.2010 under the provisions of the Kerala Panchayat Raj Act, 1994 ('the Act' for short). The returned candidate secured 396 votes whereas the election petitioner secured 395 votes and 9 votes were held invalid as per the declaration of results by the Returning Officer on 27.10.2010. The election petitioner challenged the election of the returned candidate under S. 102(d)(iii) of the Act on the following among other grounds:-

(2.) The Election Court held that Mr. Biju Devassia has double voted and that his vote is liable to be eschewed from the account of the returned candidate bringing down his tally from 396 to 395 votes. The Election Court found on evidence that one vote (bearing Sl. No. 0866) has been validly cast in favour of the election petitioner and held that the rejection of the said vote as invalid was not proper. The Election Court held that the returned candidate secured only 395 votes whereas the election petitioner secured 396 votes who was hence declared as the successful candidate. But the appellate court opined that there is paucity of pleadings in the election petition to allow re-count of votes and come to a finding as regards improper rejection of a valid vote. The Appellate Court found that both the returned candidate and the election petitioner secured 395 votes each and the successful candidate was directed to be decided by draw of lot. The lot fell in favour of the returned candidate and the verdict is challenged in C.R.P. No. 358 of 2012 by the returned candidate and in C.R.P. No. 364 of 2012 by the election petitioner.

(3.) The first question is as to whether Mr. Biju Devassia has cast his vote in Ward Nos. VIII and XI of Rajakumari Grama Panchayat as alleged by the election petitioner. It is trite law that the following conditions should be satisfied to hold that there has been double voting in order to eschew a vote from the account.