NOUSHAD Vs. RAJAN

JUDGEMENT

(1.) THE petitioner and respondents 1 to 4 herein contested in the elections held on 23.10.2010 to Ward No. 16 of Chelannur Grama Panchayat. The results were declared on 31.10.2010. The petitioner secured 411 votes, the first respondent secured 408 votes, the second respondent secured 25 votes, the third respondent secured 3 votes and the fourth respondent secured 22 votes. 15 votes were declared invalid. Aggrieved by the result of the election the first respondent herein filed Election (O.P.) No. 123 of 2010 on the file of the Court of the Principal Munsiff -I of Kozhikode seeking a declaration that the election of the petitioner herein is null and void and to declare him elected. He contended that the names of 8 voters named in the Election Petition appear in the electoral roll of Ward No. 16 of Chelannur Grama Panchayat as also in other Wards of the very same Grama Panchayat or in other Grama Panchayats, that they have voted twice, that they have cast their votes in favour of the petitioner herein and therefore, their votes are liable to be declared void in view of S. 76(3) of the Kerala Panchayat Raj Act, 1994. He contended that if the votes cast by the said eight voters are excluded, he is entitled to be declared elected. Upon receipt of notice, the petitioner herein entered appearance and filed written objections resisting the petition. During the trial, both sides adduced oral and documentary evidence in support of their rival contentions. After the evidence was closed and arguments of both sides were heard, the first respondent herein filed I.A. No. 2625 of 2013 to re -open the evidence, accompanied by I.A. No. 2626 of 2013 to extricate the ballot papers in respect of the eight voters named in Paragraph IV of the Election Petition. He contended that the ballot papers, counter foils and the marked copy of the electoral rolls are already in court and in order to prove his case that the eight persons named in Paragraph IV of the Election Petition have voted twice and cast their votes in favour of the petitioner herein, it is necessary to extricate the ballot papers used by the said eight voters in the presence of the parties and their respective counsel. The petitioner opposed the said applications by filing separate counter statements. He contended that the ballot papers can be extricated and excluded only after the court enters a finding that all or any of the eight persons named in the Election Petition have voted twice. The petitioner contended that as such a finding has not been entered, the applications are liable to be rejected. The Trial Court considered the rival contentions and allowed I.A. No. 2626 of 2013 by Ext. P8 order passed on 3.9.2013 and directed the ballot papers to be verified in the presence of the learned counsel on both sides. By Ext. P7 order passed on the same day, I.A. No. 2625 of 2013 was allowed and the evidence re -opened. The said orders are under challenge in this Original Petition filed under Art. 227 of the Constitution of India.

(2.) I heard Sri. P.V. Kunhikrishnan, learned counsel appearing for the petitioner and Sri. K.B. Sivaramakrishan, learned counsel appearing for the first respondent. Sri. P.V. Kunhikrishnan, learned counsel appearing for the petitioner contended that the court below erred in directing the ballot papers to be looked into without first entering a finding that all or any of the eight persons named in the Election Petition have voted twice. The learned counsel contended that extrication and examination of the ballot papers could have been ordered only after entering a finding that all or any of the eight persons named in the Election Petition have voted twice and in the absence of such a finding, the impugned orders are liable to be set aside. The learned counsel also placed reliance on the decision of a learned single Judge of this Court in Indulekha v. Preetha Kumari & Ors. ( : 2010 (2) KLTSN 21 (C. No. 26) : 2010 (2) KHC 113), in support of his contention.

(3.) I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The case set out in the Election Petition filed by the first respondent, who challenges the election of the petitioner herein is that the eight persons named in para. IV of the Election Petition, whose names appear in the electoral roll of different Wards of the same Panchayat/different Panchayats, had voted twice and they had cast their votes in favour of the petitioner. Seven out of the said eight persons were summoned and examined as P.Ws. 3, 4, 5, 6, 7, 9 and 10. After the evidence on both sides was closed, arguments were heard and orders were reserved in the Election Petition, the first respondent herein filed I.A. Nos. 2625 and 2626 of 2013; the former praying for inspection of the ballot papers, which had already been produced and the latter for re -opening the evidence for the purpose of extricating the ballot papers already produced. The said applications were allowed by the impugned orders on the short ground that for an effective adjudication of the dispute, the ballot papers have to be verified.