SAUDA BEEVI Vs. SUBAIDA PAREETH

JUDGEMENT

(1.) CAN the enquiry in a petition for recrimination commence when once the result of the declared candidate has been found to be materially affected or only after the declaration that his election is void in the election petition? Should not the Appellate Court being the final Court of facts compare the signatures found in the relevant documents by itself in order to decipher as to whether there has been double voting or voting by impersonation? These issues crop up in an election petition filed under Section 89 of the Kerala Panchayat Raj Act, 1994 ('the Act' for short) which stands allowed by the election Court and confirmed in appeal.

(2.) THE following are the tally of votes secured by all the candidates who contested from Ward No. VI of Asamannoor Grama Panchayat in Ernakulam District in the election held under the provisions of the Act on 25/10/2010:__ <IMG>JUDGEMENT_802_KHC4_2012img1.jpg</IMG> The Returning Officer found that an equality of votes of 324:324 exists and therefore decided to draw a lot between the election petitioner and the returned candidate as enjoined under Section 79 of the Act. The addition of one vote would have entitled any one of those candidates to be declared elected and the election process proceeded as if the candidate on whom the lot fell had received an additional vote. The declaration of result followed on 27/10/2010 and the same was challenged by the election petitioner under Section 102(1)(d) (in) of the Act on the ground that there has been an improper reception of void votes. The election petitioner contended that a total number of four votes are liable to be eschewed from the account of the returned candidate on the ground of double voting and impersonation. The returned candidate filed a petition for recrimination under Section 99 of the Act contending that a total number of four votes are liable to be eschewed from the account of the election petitioner on the same grounds. The election Court held that two voters had cast double votes and that one vote had been cast by impersonation after a composite enquiry of the election petition and the petition for recrimination. Three votes were eschewed from the account of the returned candidate and two votes from the account of the election petitioner in that exercise. The total number of votes varied to 321:322 and hence the election of the returned candidate was declared to be void and the election petitioner declared as the successful candidate. The decision of the election Court was unsuccessfully impugned in appeal filed by the returned candidate under Section 113 of the Act and the challenge is pursued in this Civil Revision Petition.

(3.) MR . C. S. Ajith Prakash, Advocate on behalf of the election petitioner contended that the returned candidate cannot bank on the decision of the Returning Officer on the equality of votes in the instant case. This is because the tally of votes of 324:324 at the time of counting by the Returning Officer was varied to 323:323 after the enquiry in the election petition by the election Court. The sanctity of the decision of the Returning Officer on the equality of votes under Section 79 of the Act would be effective for the purpose of the election petition only if the tally continues to be the same. Section 104(a) of the Act making the decision of the Returning Officer effective also for the purpose of the election petition cannot have any application when the tally of votes was altered from 324:324 to 323:323. The enquiry in the petition for recrimination was warranted since the result of the election of the returned candidate had been 'materially affected after the enquiry in the election petition. The enquiry in the petition for recrimination disclosed that two voters by name Maitheen (PW 7) and Khadeeja (PW 8) had cast double votes and that the vote of Mohammed (PW 6) was cast by impersonation. This brought the tally of votes as between the returned candidate and the election petitioner to 321:322 necessitating a declaration to set aside the election and further declare the successful candidate.