KUNJI THOMMAN Vs. KUNJI MARAKAR ALIKUNJI

JUDGEMENT

(1.) The petitioner and the 1st respondent were candidates for election from the Village Cutcherry Ward (No. 3) of the Puthenchira Panchayat. The Election Officer found that both of them got an equal number of votes, namely, 361 each, drew lots as provided in R.44 of the Travancore Cochin Panchayat Rules, 1951, and declared the petitioner to have been elected from the constituency.

(2.) The 1st respondent filed an Election Petition, No. 2 of 1953 and succeeded in securing the seat. On a careful review of the evidence the Election Commissioner came to the conclusion that the name of PW 3 had been entered twice on the Electoral Roll, and that he voted twice at the polling on 6.5.1953, first as voter No. 316 in favour of the 1st respondent and then as voter No. 693 in favour of the petitioner. He also held that the vote cast as voter No. 316 on ballot paper No. 2890 in favour of the 1st respondent was valid and that the second vote, namely the vote in favour of the petitioner, had to be discarded. As a result there were, according to him, 361 valid votes for the 1st respondent as against 360 for the petitioner and he declared the petitioner's election to be void under R.78(2) and the 1st respondent as duly elected under R.79(1) of the Travancore Cochin Panchayat Rules, 1951.

(3.) The only question that arises for decision, and the only question that was argued on behalf of the petitioner, is that in a case of plurality of voting both the votes should be discarded and not merely the second vote as has been done by the Election Commissioner. I am aware of no authority, and none was cited at the Bar, which has held the first vote also to be void in the absence of a statutory provision directing that both the votes should be discarded.