ABDULLA HAJI Vs. MOHAMMED

JUDGEMENT

(1.) WHETHER the election of a returned candidate to the Grama Panchayat can be set aside under Section 102 (1) (d) (iii) of Kerala Panchayat Raj Act, 1994 without establishing that acceptance of void votes materially affected the result of his election?

(2.) THE revision petitioner was declared elected to Ward No. XVI of Paivalike Grama Panchayat in the election held on 26. 9. 2005. The respondent in the revision petition, who is the petitioner in the Writ Petition, was the only other candidate in the election. The returned candidate secured 562 votes and respondent 556 votes. 53 votes were declared invalid. Respondent filed Election O. P. No. 7/2005 before Munsiff Court, Kasaragod under Section 102 (1) (d) (iii) of the Kerala Panchayat Raj Act contending that there were double voting in favour of the returned candidate. It was contended that son of the respondent who was examined as PW6 was registered in the same Ward twice and had also voted twice and both the votes are void. It was also contended that all the persons shown in the A schedule to the election petition were voters in the same or two Constituencies and had case their votes in both the Constituencies and therefore their votes are void. It was contended that as there were void votes in favour of revision petitioner, his election is void and if the void votes were not accepted in his favour respondent would have been declared elected. Respondent therefore sought a declaration that election of the revision petitioner is void and that he is the returned candidate. Revision petitioner resisted the petition contending that there was no double voting as alleged and his election has not been materially affected by acceptance of any void votes and therefore his election cannot be set aside or the respondent declared the elected candidate. Inspite of the declaration sought in the election petition, petitioner did not file a recrimination petition as provided under Section 99 of the Kerala Panchayat Raj Act.

(3.) TO substantiate his case respondent examined himself as PW1, and also 11 witnesses who allegedly voted twice. Exts. A1 to A18, C1 and X1 to X19 were also marked. No evidence was adduced on the side of the petitioner.