OMANAKUTTAN Vs. SAJAN THOMAS

JUDGEMENT

(1.) Petitioner is a returned candidate from Ward No. 15 of Kanjirappally Grama Panchayat as per the election conducted under the provisions of the Kerala Panchayat Raj Act. He won the election by a margin of two votes by securing 689 votes as against 687 votes secured by the first respondent herein. The first respondent challenged the election by filing Election O.P.No. 1/2000 before the Election Tribunal, the Munsiff's Court, Kanjirappally.

(2.) The main allegation contained in the Election Petition was that three persons named in Schedule A to the Election Petition were figured in the voters list of Ward No.9 of Chirakkadavu Grama Panchayat. Two persons named in Schedule B were figured in the voters list of Ward No. 12 of Kanjirappally Grama Panchayat as well. It was further alleged that the above five persons cast their votes in both the constituencies and therefore, they have committed the mischief of double voting and hence their votes are void. It was his further case that six postal ballots were to be rejected for want of proper authorisation. On behalf of the first respondent herein PWs. 1 to 11 were examined and Exts.X1 to X33 were marked. Exts.C1 to C7 were marked as court exhibits. DWs. 1 to 4 were examined on the side of the petitioner herein. The Election Petition was ultimately allowed and the petitioner was unseated. He challenged the above order by filing Election Appeal 73/2003 before the District Court Kottayam, which was dismissed confirming the order of the Court below. Hence he has approached this Court by filing this revision.

(3.) The appellate Court, in para 21 of its judgment has drawn up a table for the purpose of easy consideration of the allegations and counter allegations. The five persons whose votes were contended to be invalid are shown as item 1 to 5 in the tabular column. The corresponding serial number in Constituency 15 of the Kanjirappally, the marking given to the counter foil ballot paper, the serial number in the voters list in the other constituencies, the disputed signature and their markings and the signature in the summons and the marking given on them are contained in the tabulation. The name of the first three persons appear in the A schedule to the Election Petition and the name of 4th and 5th persons appear in the B Schedule. The disputed ballot papers were sent to the Handwriting Expert and he submitted a report which is marked as Ext.C7. Based on Ext.C7 report and the evidence of PW 11 it was contended that only two persons were guilty of double voting and when their votes were excluded then the votes polled in favour of the petitioner and the first respondent are equal in number and if that be the position, recourse has to be made under S.104 of the Panchayat Raj Act by putting the name to lots to decide the result. But the court below, on a consideration of the oral testimony of the voters as well as Ext.C7 report and the deposition of PW. 11 found that there has been double voting by atleast four persons named in the petition. On that basis, the first respondent herein was declared elected by a margin of two votes. It is contended that the court below ought not have compared the signature and to come to a conclusion regarding the two votes in respect of which even the expert did not give a positive finding. Relying on S.45 and 73 of the Evidence Act and following the dictum laid down in Lalit Popli v. Canara Bank, 2003 (3) SCC 583 and Elected Commission of lndia v. All India Anna Dravida Munetra Kazhagam, 1994 Suppl. (2) SCC 689, the learned counsel respondent contended that it is not the law that the Court is incompetent to compare the signature but only that it should be done with extreme care and caution. It was also contended for the respondent that an impartial consideration of the evidence in the case would clearly reveal that the mischief of double voting has been committed by atleast four persons. S.76(3) of the Kerala Panchayat Raj Act provides that no person shall vote at a general election in more than one constituency of the same level and if he does so, his votes in all such constituencies shall be treated as void. The Trial Court has found that four persons have committed the mischief of double voting their votes have to be declared as invalid and the consequent result would be that the first respondent would win over the petitioner by two votes. Though a contention was raised that the Court is incompetent to compare the signature contained in the voters list for arriving at any conclusion and that in respect of atleast two votes opinion of the expert was inconclusive and hence the Court below ought not have rejected those two votes as invalid, the appellate Court in para 23 of its judgment observed that there is no dispute before the appellate court that the name of Appukuttan, Ashokan, Bency and Manikuttan whose serial numbers are shown as 1 to 4 in the table appeared in the voters list of both the constituencies and there was also no dispute regarding the fact that votes in their names have been cast in both the constituencies. If so, the provisions contained in S.76 of the Kerala Panchayat Raj Act is attracted and thus the votes cast in both the constituencies are to be rendered void.