ANNAMMA Vs. ELSAMMA AND ORS.

JUDGEMENT

(1.) THIS writ appeal raises a question relating to the nature of notice contemplated under Rule 64 of the Kerala Panchayats (Election of Members) Rules, 1962 (the Rules). In effect, the question is, where there is equality of votes between any two or more candidates, the Returning Officer, in terms of the rule, should give notice in writing or it would be sufficient to give oral intimation, before he proceeds to draw lots to decide who among the candidates is or are to be declared to have been duly elected.

(2.) IN the election to the Panchayat held, each of the petitioner in O.P. No. 5569 of 1981 -M and the first Respondent had polled 565 votes; and because of the tie, the first Respondent in the writ petition was declared elected by the Returning Officer by drawing lots. The writ petitioner took up the matter in O.P. (Election) 62 of 1980 before the 3rd Respondent Munsiff under Section 22 of the Kerala Panchayat Act, 1960 (the Act) read with Rule 5 of the Kerala Panchayats (Decision of Election Disputes) Rules, 1963. The Election Petition has been directed against the dismissal of the Election Petition, and that writ petition having been allowed this writ appeal has been preferred by the 1st Respondent in the writ petition. The question relating to the drawing of lots to decide as to who between the two candidates who polled equal number of votes was to be declared elected is found to have been discussed by the third Respondent -Munsiff in paragraphs 13 to 15 of Ext. P -1 order, which has been under challenge in the writ petition. Summing up the discussion, the finding recorded in paragraph 15 reads as follows:

(3.) THE factual finding by the 3rd Respondent -Munsiff that the writ Petitioner had intimation regarding the Returning Officer proceeding to draw lots to decide as to who, between the writ petitioner and the Appellant herein, should be declared to have been elected; that lot was drawn in her presence; that the result has been in favour of the Appellant herein; and that she has been declared to have been duly elected, could not be assailed in this writ petition. The only question that could be gone into in the writ proceedings is whether the declaration is vitiated by the admitted fact that no notice in writing regarding the Returning Officer proceeding to draw lots to decide the issue was given to the writ petitioner. The learned Judge took the view that no notice in writing having been given with respect to the intention to draw lot, the declaration was vitiated, and therefore, quashed the declaration and directed the 3rd Respondent to decide the matter afresh after issue of notice in writing to the writ petitioner.