JAMEELA IBRAHIMKUTTY Vs. SELMATH

JUDGEMENT

(1.) AN unsuccessful Candidate to Ward No. II of Vengola gramapanchayat in the election conducted on 24. 9. 05 is the petitioner. Respondent was the Successful Candidate. Petitioner filed O. P. (Ele.) 4/05 before Election Tribunal (Munsiff Court, perumbavoor) to set aside the election of respondent. That petition was filed only under section 102 (1) (d) (iv) of Kerala Panchayat Raj Act. The case of the petitioner was that at the time of counting, out of 851 votes polled only 850 votes were in the ballot box and therefore one vote was missing and after counting respondent obtained 392 votes and petitioner 391 votes, the difference being only one vote. It was contended that under section 78 of the Kerala panchayat Raj Act if at the time of counting, a ballot paper is found lost or damaged and if the result of the election will be materially effected if the lost ballot paper is also taken into account, the Returning Officer has to report the matter to the Election Commissioner and the counting has to be stopped. As the missing ballot paper is crucial repelling should have been ordered and as there is violation of Section 78 which materially effect the result of the election, the election, is to be set aside. As the petitioner did not seek a further declaration of her election an application as provided under section 99 would not lie. Respondent approached this court by filing W. P. (C)8917/06 contending that he is entitled to file a recrimination petition and as section 99 does not enable her to file a recrimination Petition, she is to be permitted to file a recrimination Petition. That petition was dismissed at the admission stage itself holding that there is no question of recrimination or application under Section 99, as the petitioner in the election petition did not seek a declaration of her election. But it was observed that respondent would be well within her rights to plead and establish her contention that the result of the election in so far as it concerns her, the returned candidate, is not materially affected by the alleged infraction of Section 78. Armed with this observation, respondent filed Ext. P3 application before the Election tribunal to summon the District Collector to produce the records to substantiate her case that three persons who caste their votes in favour of the petitioner are voters who caste the vote in other Wards of Grama Panchayat election. Respondent contended that she is entitled to summon the records in view of Ext. P4 order of this court in W. P. (C) 8917/06. The Election Tribunal by Ext. P5 order allowed the petition as follows:- I. A. allowed in view of the observation made by the honble Court in Writ Petition (C) 8917/06. It is challenged in this petition filed under Article 227 of the Constitution of India.

(2.) THE argument of learned counsel appearing for the petitioner is that the documents allowed to be summoned under Ext. P4 order are only to prove that three votes cast to the petitioner are invalid and that question cannot be considered by the Election Tribunal so long as no recrimination petition is maintainable under section 99 of the Act and therefore the impugned order is to be quashed. Learned counsel appearing for respondent argued that the question whether the missing of one ballot paper materially affected the result of the election of the respondent is a matter, which is to be decided by the Tribunal and it was allowed to be raised and proved by this court in Ext. P4 order and the Tribunal has only directed to produce all the documents under Ext. P4 order and that discretion exercised by the Tribunal cannot be challenged in exercise of the extra ordinary jurisdiction under Article 227 of the Constitution of India.

(3.) THE election petitioner may further ask a relief for the election of the returned candidate be declared void. She may also ask for an additional relief that she or any other candidate may be declared as elected. A recrimination petition is maintainable only if the petitioner had claimed additional relief. In the election petition if the additional relief is claimed the returned candidate is entitled to recriminate against the person in whose favour a declaration is claimed. THE Apex Court in Janardan Dattuappa bondre v. Govindprasad Shivprasad Choudary (AIR 1979 SC 1617) has laid the scope of a recriminatory plea as follows:- THE recriminatory plea is in truth and substance not so much plea in defence of ones own election, though that be its ultimate purpose and effect, as a plea of attack by which the successful candidate assumes the role of a counter-petitioner and contends that the election of the candidate in whose favour the declaration is claimed would have been void if he had been the returned candidate and a petition had been presented calling his election in question. When an election petitioner is filed only with the claim that the election of the returned candidate is to be declared void as in this case the only point which the Tribunal has to be decided whether the election of the returned candidate has been materially affected and no other enquiry is legitimate or permissible in such a case. THE scope of an enquiry of a petition filed under section 102 (1) (d) (iv) of the Act is identical to Section 101 (1) (d) of Representation of peoples Act. THE scope of an enquiry in such a petition was laid by the Apex Court in Jabar Singh v. Genda Lal (AIR 1964 SC 1200) as follows:- In other words, the scope of the enquiry in a case falling under S. 100 (1) (d) (iii) is to determine whether any votes have been improperly cast in favour of the returned candidate, or any votes have been improperly refused or rejected in regard to any other candidate. THEse are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in S. 100 (1) (d) (iii), the result of the returned candidates election has been materially affected, and that, incidentally, helps to determine the scope of the enquiry. THErefore, it seems to us that in the case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of s. 100 (1) (d) itself. THE enquiry is limited not because the returned candidate has not recriminated under section under section 97 (1); infact S. 97 (1) has no application to the case falling under S. 100 (1) (d) (iii), the scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate, the tribunal has to make a declaration to that effect, and that declaration brings to an end the proceedings in the election petition. (Emphasis supplied) That legal position has been reiterated in Bhag Mal v. Prabhu Ram (AIR 1985 SC 150 ).