SISILY MATHEW Vs. SANTHAMMA REMESAN AND ORS.

JUDGEMENT

(1.) SISILY Mathew, the petitioner in the revision, was a candidate who contested in the election held on 25.10.2010 at ward No. 18 of Kaduthurthy Grama Panchayat. The other candidates who contested in the election were Santhamma Remesan and Usha Sarasakumar. Counting of votes was on 27.10.2010. The third respondent was the Returning Officer. Sisily Mathew got 423 votes including three postal votes, while Santhamma Remesan secured 426 votes including 8 postal votes. The total number of ballot papers issued were 954. At the time of counting, it was revealed that four ballot papers were missing.

(2.) SISILY Mathew filed Election O.P. No. 2 of 2010 before the Munsiff's Court, Vaikom, to set aside the election held on 25.10.2010 at ward No. 18 of Kaduthuruthy Grama Panchayat. The trial court on a consideration of the oral and documentary evidence in the case allowed the Election O.P. and declared that the declaration of Santhamma Remesan as the Panchayat member of ward No. 18 of Kaduthuruthy Grama Panchayat is void and accordingly, the same was cancelled. Santhamma Remesan challenged the order of the trial court in A.S. No. 227 of 2011, on the file of the District Court, Kottayam. The lower appellate court reversed the finding of the trial court and dismissed the Election O.P., which is under challenge in this revision filed by Sisily Mathew.

(3.) IT was contended before the trial court that the missing of ballot papers should have been detected even before the actual counting and the loss of ballot papers should have been noticed immediately after the sorting of ballot papers. It was contended by the petitioner in the Election O.P. that when the loss of ballot papers was noticed by the Returning Officer, without declaring the results of the poll, the Returning Officer ought to have referred the matter to the Election Commission as provided under Section 78 of the Panchayat Raj Act. The trial court held that the loss of ballot papers was noticed after the counting was over and after knowing about the votes secured by each candidate. The lower appellate court held that the loss of ballot papers was known to the candidates even before counting the votes after sorting the ballot papers. The appellate court held that the Returning Officer and the candidates were aware of the loss of four ballot papers even before counting of votes secured by each candidate was made and nobody raised any objection against counting of votes. The appellate court also took note of the admission made by PWs 1 and 2 that they were vigilant at the time of counting and they have understood after sorting the votes that there was a shortage of four ballot papers and even thereafter, they allowed the Returning Officer to proceed to the next step of counting of votes.