DOMINIC Vs. GOPALAKRISHNAN

JUDGEMENT

(1.) This appeal, directed against the judgment of the learned single Judge in OP 2170 of 1992-H dated 30-7-1992, raises important questions relating to adjudication of election disputes. The dispute in the present case arises in the context of an election to the office of the Chairman of a Municipality in Kerala. Inasmuch as a fundamental mistake which goes to the root of the matter has come to light during the hearing of the appeal, it has become necessary to deal with it lest other Election Tribunals may commit similar mistakes. In fact, the point is clearly covered in favour of the respondent, by the judgment of the Supreme Court in P.K.K. Shamshudden v. KA.M. Mappilai Mohiddin ( AIR 1989 SC 640 ).

(2.) There was a vacancy in the office of the Chairman of the Palghat Municipality on the death of Mr.N.A.Karim in July 1991. A special meeting of the Municipal Council was called for electing a new Chairman on 9-8-1991. At that election, Sri.M.S. Gopalakrishnan (first respondent) was declared elected as Chairman. Thereafter, the appellant in this Writ Appeal, Sri P.P. Dominic, who was the unsuccessful candidate, filed the Election Petition before the District Judge, Palakkad as Election OP No.56 of 1991. It was declared in the election that 33 members out of 35 cast their votes and it was found by the Returning Officer that 17 votes were cast in favour of Sri.M.S. Gopalakrishnan while the appellant, Sri. P.P. Dominic got 16 votes. The case of the appellant was that certain invalid votes polled in favour of the first respondent were treated as valid. It was pleaded that while the mark (X) is to be put against the name of the candidate in the ballot paper, a different mark was put and that, inspite of that, the Returning Officer had treated the said votes as valid polled in favour of the first respondent.

(3.) The learned Tribunal initially passed an order on 18-11-1991 directing the ballot box to be opened and upon looking into the ballot papers came to the conclusion that the irregularity mentioned above in the marking of the ballot papers was a fact and he then considered whether the ballot paper which contained a mark other than (X) was valid or not. He then recovered evidence of witnesses on 19-12-1991 and 10-1-1992 and passed a final order in the Election Petition on 12-2-1992 allowing the Election Petition holding that one ballot paper counted in favour of the first respondent did not contain the prescribed mark (X) and was invalid. He set aside the election of the first respondent and ordered re-election to the office of Chairman.