RAJANI KRISHNAKUMAR Vs. PADMAJA

JUDGEMENT

(1.) Petitioner is the respondent in Election O.P. No. 19 of 2010 on the file of the Munsiff Court, Wadakancherry. Her election as the returned candidate from Ward No. 19 of West Thonnurkkara of Chelakkara Grama Panchayath is challenged under the above election petition for declaring it as void, by the respondent herein, who was the other contesting candidate from the Ward. Both the candidates obtained equal number of votes on counting and thereupon on taking of lots, the petitioner was declared elected by the returning officer. Very many votes polled in favour of the petitioner in the election petition had been treated as invalid votes and some invalid votes had been treated as valid votes polled in fevour of the petitioner/the returned candidate declared elected, is the case of the respondent/petitioner in the election petition imputing that counting of votes carried out was improper and it has vitiated and materially affected the result of the election. Petitioner in the election petition has moved Ext. P3 application for production of entire votes polled in the Ward including those which had been treated as invalid before the court. That was objected to by the returned candidate riling Ext. P4 objection. Overruling the objection, the learned Munsiff has passed Ext. P5 order directing the District Electoral Officer to produce the polled ballot papers including those declared void relating to Ward No. 19 (Thonnurkkara West) of Chelakkara Grama Panchayath in a sealed packet before the court through a duly authorised officer. Propriety, legality and correctness of that order is challenged in the original petition invoking the visitorial jurisdiction vested with this Court under Article 227 of the Constitution of India. I heard the counsel on both sides. Admittedly, no evidence was recorded in the election petition before the learned Munsiff passed Ext P5 order on the basis of Ext. P3 application moved by the applicant therein, the defeated candidate. Whatever be the ground set forth imputing impropriety and illegality in the counting of the votes polled in the election to canvass the reliefs set out in the election petition, the question emerges for consideration whether the learned Munsiff was justified in passing Ext. P5 order directing for production of ballot papers. No doubt, the learned Munsiff has not taken note of and in fact ignored the sanctity and secrecy attached to ballots, which cannot be trilled with unless sufficient grounds for inspection has been made out not only with sufficient pleading but also substantial evidence in support thereof justifying an order of the court to do so. The Apex Court in Udey Chand v. Surat Singh and Another, 2009 10 SCC 170 has reiterated the caution to be taken and also the satisfaction required of by the court before passing an order for inspection of the ballot papers. In the above decision, it has been stated thus: