ANTONY VARGHESE Vs. SUBRAMONIAM

JUDGEMENT

(1.) THE petitioner was returned elected as Councilor of the Cochin Corporation from Division No. 34 in the election held on 15-9-1979. Respondents I and 2 were the other candidates who unsuccessfully contested the election from that Division. Each of them separately challenged the petitioner's election by Election Petitions 1 and 4 of 1979 on the ground that certain ballot boxes had been tampered with, and the Returning Officer failed to comply with the requirements of the law in such circumstances. THE petitions were tried together. THE learned District Judge, Ernakulam, the 3rd respondent, by his impugned order, Ext. P2, declared the petitioner's election to be invalid and ordered fresh election in Division No. 34. THE petitioner's counsel, Sri. M. N. Sukumaran Nair contends that Ext. P2 is vitiated by errors of law. He says that it has been made contrary to the legal provisions; it is not reasonably supported by evidence; the judge has not taken into account relevant matters; and, he has taken into account irrelevant matters.

(2.) THE learned judge relied on the evidence of pws. I to 3 and came to the conclusion that three of the ballot boxes in booth No. 7 of division No. 34 had been tampered With as a result of which the polling was invalid. THE Judge disbelieved the evidence of pw. 4 who was the Returning officer (the Commissioner of the Corporation ). pw. 4 stated that he was satisfied that the boxes in question bad not been tampered with; that he did not therefore stop the counting of the ballot papers; and, that, in his view, there was no ground to declare the polling to be void. THE testimony of pw. 4 was totally inconsistent with what respondents 1 and 2 stated as pws. 1 and 3 as well as with the evidence of pw. 2. who was the election agent of pw. 3.

(3.) THE power of the Election Tribunal to declare an election to be invalid is derived from S. 55 of the Kerala Municipal corporations Act, 1961. It reads: "55. Determination of validity of elections. (1) If, on the application made by a person referred to in sub-section (2) within the period specified therein, the District Judge, after such enquiry as he considers necessary, is satisfied (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the provisions of this Act; or (b) that the corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of this act or of any rules made thereunder, the District Judge may, subject to the provisions of S. 54 declare the election of such councilor to be invalid and such declaration shall be final: (emphasis supplied) It is admitted on all sides that this case falls exclusively under clause (d) (iv) of the above section and the relevant rules. It is important to note that an election can be invalidated in terms of clause (d) of the section only if the result, in so far as it concerns the returned candidate, has been materially affected owing to any one of the four reasons mentioned thereunder, which in the present case is what is stated in sub-clause (iv) namely, non-compliance with the law. I emphasise this fact, for the reason that the provisions of clause (d) are not identical in scope to those of clauses (a) to (c), for in the case of the latter there is no reference to the result of the ejection of the returned candidate having been materially affected as a condition for the exercise of power under S. 55. On proof of any of the relevant facts referred to in clauses (a) to (c) of sub-section (1) of s. 55, the judge has the power to declare an election invalid without going into the further question whether such fact has materially affected the result of the election. That means where a candidate was not qualified as stated in clause (a) or where there was corrupt practice as referred to in clause (b) or where the nomination was improperly rejected as in clause (c), the question whether the result of the election was materially affected is irrelevant. Upon proof of those disqualifying elements, the judge has the power to declare the election invalid, In a case such as the present which admittedly comes under clause (d) (iv), the power of the judge to invalidate an election depends upon two questions: d) Have the applicants (the election petitioners) proved the alleged facts to establish non-compliance with the Act or the Rules?, and, (2) If so, has such non-compliance materially affected the result of the election, in so far as it concerns the returned candidate ? Affirmative answers to both the questions are a condition precedent to an order invalidating an election.