SHAJILAL Vs. V LEENA

JUDGEMENT

(1.) THIS Appeal is at the instance of the petitioner in O.P. (Election) No.24 of 2002 before the District Court, Thiruvananthapuram. The petitioner filed the above Election Petition for setting aside the bye election conducted on 17.1.2002 to Ward No. B-12 of Varkala Block Panchayat and to declare that the petitioner was the elected candidate. The above petition was dismissed by the District Judge, Thiruvananthapuram by Order dated 13.2.2003. The above order is under challenge in this Appeal.

(2.) THE appellant and respondent were candidates in the bye election held on 17.1.2002 to Ward No. B12 of Varkala Block Panchayat. The scrutiny of the nominations was conducted on 20.12.2001 and the appellant raised an objection that the first respondent was holding the post of Nodel Prereak in the Varkala Block Panchayat attached to the Kerala State Literacy Mission and thus he was disqualified to contest the election and though such a contention was raised, the authorities had not considered the above contention regarding the disqualification and permitted the first respondent to contest the election. The counting of votes was held on 18.1.2002. The total number of eligible voters in all the sixteen polling stations was 11097 and 5921 voters cast their votes including one tender vote by voter No. 612 Ammini. It was alleged that on counting of the votes held on 18.1.2002 the appellant and the first respondent got 2874 votes each and respondents 3 and 4 got 70 and 160 votes respectively and 39 votes were found invalid, and though the appellant wanted to declare the result by lot under S.79 of the Kerala Panchayat Raj Act, the Returning Officer, made a recounting of the ballots in polling station No. 12/73/VIII-1 and in the recounting, one vote was found missing and the above missing was caused by the removal of a vote by one Ratnakumar, the election agent of the first respondent. After completion of the counting, without declaring the result, the Returning Officer conducted a repoll for the area covered within the polling station No.12/73/VIII-1 on 21.1.2002 without giving adequate prior intimation and in the second poll, 101 additional voters were permitted to cast their votes and the first respondent got a lead of 17 votes and he was declared as elected. The petitioner challenged the conduct of the repoll alleging that it was in violation of the provisions of law. Thus the petitioner appellant prayed for setting aside the election of the first respondent and for declaring the petitioner has been elected.

(3.) THE main argument advanced by the learned counsel for the petitioner was that the procedure adopted by the authorities in having conducted a repolling in polling station No.12/71/VIII-1 was illegal. Though it was alleged that on counting of votes held on 18.1.2000 both the appellant and the first respondent secured 2874 votes each, the evidence did not disclose the same. The evidence on record would show that the first respondent secured 2874 votes whereas the appellant secured 2873 votes. In polling booth No.12/73/VIII-1 one vote was found missing though it was polled. There was one tender vote. In the above circumstances, the Returning Officer intimated the matter to the Election Commission and the Election Commission directed a repoll in booth 12/73/VIII-1.