K.R. Mohanan Nair v. Maju Mathew Pulickal & Sunilkumar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY, THE 12TH DAY OF JUNE 2017/22ND JYAISHTA, 1939 OP(C).No. 935 of 2017 (O) -------------------------AGAINST ORDER DATED 13.02.2017 IN IA NO.1611/2016 IN O.P.(ELECTION) NO.2/2015 OF PRINCIPAL DISTRICT COURT, KOTTAYAM. PETITIONER/1ST RESPONDENT:-: ------------------------------ K.R.MOHANAN NAIR, S/O.N.RAMAN NAIR, AGED 65 YEARS, RESIDING AT KOTTARATHIL HOUSE, POONJAR P.O., PIN - 686 581. BY ADVS.SRI.K.GOPALAKRISHNA KURUP (SENIOR ADVOCATE SRI.K.SURESH SMT.DEEPTHI S.MENON RESPONDENTS/PETITIONER & 2ND RESPONDENT:-: -------------------------------------------- 1. MAJU MATHEW PULICKAL, S/O.THOMAS MATHEW, AGED 36 YEARS, PULICKAL HOUSE, 7/41, POONJAR P.O., PIN - 686 581. 2. SUNILKUMAR, S/O.RAMAKRISHNAN, AGED 41 YEARS, KURUVINAL HOUSE, 7/237, POONJAR P.O., PIN - 686 581. R1 BY ADVS. SRI.S.SREEKUMAR (SENIOR ADVOCATE) SRI.P.MARTIN JOSE SRI.JUSTINE JACOB SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26-05-2017, THE COURT ON 12-06-2017 DELIVERED THE FOLLOWING: OP(C).No. 935 of 2017 (O) -------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1. TRUE COPY OF THE PETITION O.P.(ELECTION) NO.2/2015 FILED BY THE 1ST RESPONDENT HEREIN BEFORE THE DISTRICT COURT, KOTTAYAM. EXHIBIT P2. TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN IN EXT.P1 ELECTION PETITION. - EXHIBIT P3. TRUE COPY OF THE PETITION I.A.NO.1611/2016 ALONG WITH THE AFFIDAVIT IN SUPPORT OF THE SAME, FILED BY THE 1ST RESPONDENT. EXHIBIT P4. TRUE COPY OF OBJECTION FILED BY THE PETITIONER HEREIN TO EXT.P3 I.A.NO.1611/2016. EXHIBIT P5. TRUE COPY OF ORDER DATED 13.02.2017 IN I.A.NO.1611/2016 IN O.P.(ELECTION) NO.2/2015 OF THE DISTRICT COURT, KOTTAYAM. RESPONDENT(S)' EXHIBITS NIL ----------------------- //TRUE COPY// ## **A.HARIPRASAD, J. --------------------------------------** ## **O.P.(C) No.935 of 2017** ## **-------------------------------------Dated this the 12[th] day of June, 2017** ## **JUDGMENT** Original petition filed under Article 227 of the Constitution of India challenging the order passed by the learned District Judge, Kottayam on an interlocutory application in an Election Petition. 2. Petitioner is the 1[st] respondent in O.P. (Election) No.2 of 2015. He defeated the 1[st] respondent, the closest unsuccessful candidate in the election, by a slender margin of one vote. Both of them contested in Division No.08 - Poonjar of Erattupetta Block Panchayat. General election to the Panchayats and other local self governments was held on 05.11.2015. 3. 1[st] respondent filed the election petition before the court below under Sections 88(1)(b) and 89 of the Kerala Panchayat Raj Act, 1994 (in short, “the Act”) seeking to declare the election of the petitioner void and to declare him as the returned candidate. It is mainly contended in the election petition that there was illegal reception of certain void votes. It was further contended that one voter having Sl.No.883 of 01 - Perunilam Ward of Poonjar Grama Panchayat was entered as Sl.No.147 of 07 - Pulikkapalam Ward of the same Grama Panchayat. He had cast vote in OP(C) No.935 of 2017 2 both the Wards coming under different Divisions of Erattupetta Block Panchayat. Therefore, reception of his vote is liable to be declared void. 4. Further allegation is that three voters, whose names are shown in the petition, who have been entered in the voters list of 02 - Mattakkadu Ward of Poonjar Grama Panchayat, are also included as voters in 020 - Town Ward of Erattupetta Municipality. The said three voters also had cast their votes in both the Wards and thus committed the wrong of double voting. Reception of their votes was also bad in law. 5. Yet another voter included in the voters list of 03 - Palace Ward of Poonjar Grama Panchayat was seen included in 011 - Kuttimaram Parambu Ward of Erattupetta Municipality. He also exercised his franchise in both the Wards. Thus reception of five votes, as described in the election petition, is to be treated as void and to be excluded from the number of valid votes. 6. 1[st] respondent opposed the election petition by filing a counter statement. According to the 1[st] respondent, the petition is not maintainable in law. The allegation, that one person figuring in two Wards of the same Grama Panchayat has cast vote twice, is denied. The 1[st] respondent would contend that name and other details of the said person mentioned in the petition _per se_ would show that it cannot be one and the same person. 7. With respect to double voting by persons figuring in the voters 3 OP(C) No.935 of 2017 lists of Grama Panchayat and Municipality, it is contended by the 1[st] respondent that the mischief of double voting will be attracted only when votes are cast in more than one constituency of the same level. Stated precisely, if a person votes in a constituency of Block Panchayat and also in a Municipality, the mischief of double voting will not be attracted. 8. Heard Sri.K.Gopalakrishna Kurup, the learned Senior Counsel appearing for the petitioner and Sri.S.Sreekumar, the learned Senior Counsel appearing for the 1[st] respondent. 9. The impugned order was passed by the learned District Judge in Ext.P3 application. Ext.P3 was filed by invoking Sections 94 and 151 and also Order XVI of the Code of Civil Procedure, 1908 (in short, “CPC”) read with Section 94 of the Act. Prayer in the petition is to issue summons to the District Collector, Kottayam, as the District Electoral Officer, to produce the entire records of election kept by him in safe custody as per Rule 55A of the Kerala Panchayat Raj (Conduct of Election) Rules, 1996 (in short, “the Rules”); particularly the vote register in Form 21A, voters list copy used at the time of election by the Presiding and Polling Officers, result sheet in Form 24A Parts I and II, memory chip of the electronic voting machine with voting machine to decipher and delete votes, if necessary. The learned District Judge, by the impugned order, allowed the petition in the following manner: 4 OP(C) No.935 of 2017 _“........... However considering the facts and circumstances of the case and the drawback of this court to retain and maintain the election records which require utmost secrecy and transparency, I hold that without summoning the custodian of the records to produce the records at this point of time the same can be relegated to be produced and summoned at the time of adducing evidence as provided under Order 18 Rule 16(2) of CPC r/w. Order 16 Rule 1 of CPC so as to avoid the concern of maintaining the records in the premises of the court. With these observations the petition allowed. The petitioner is at liberty to summon the custodian of the records sought to be produced at the time of evidence.”_ 10. Sri.K.Gopalakrishna Kurup contended that the learned District Judge committed a grave legal error in allowing the petition. According to him, attempt by the 1[st] respondent is to conduct a roving enquiry into the secret documents and to fish out evidence in a case with scanty pleadings. He strongly contended that the court below should not have allowed the application in the light of insufficient pleadings in the election petition. 11. Per contra, Sri.S.Sreekumar would contend that all the facts have been meticulously pleaded in the election petition and the instances of double voting have been clearly narrated. That apart, the 1[st] respondent 5 OP(C) No.935 of 2017 never ventured a roving enquiry for mustering evidence. It is his definite case that the election is vitiated by malpractices committed by certain persons, who said to have cast vote in favour of the petitioner. If the void votes were excluded, the 1[st] respondent would have been declared the successful candidate. In order to establish the case of the petitioner, the documents sought for are highly essential. 12. The election is challenged by the 1[st] respondent specifically urging the ground under Section 102(1)(d)(iii) of the Act. It says that subject to the provisions of Sub-section (2), if the court is of opinion that the result of an election, insofar as it concerns a returned candidate, has been materially affected by improper reception, refusal or rejection of any vote or reception of any vote which is void, then the court shall declare the election of the returned candidate to be void. 13. In order to appreciate the contentions, the following definitions in the Act are to be considered. Section 2(ii) defines “Block Panchayat” in the following terms: _“'Block Panchayat' means a Block Panchayat constituted at intermediate level under clause (b) of sub-section (1) of Section 4”_ ## Section 2(vii) defines “constituency” thus: _“'constituency' means the territorial area (by whatever name called) for the purpose of election_ 6 OP(C) No.935 of 2017 _of a member to a Panchayat at any level”_ Section 2(xv) defines “elector” as follows: _“'elector' in relation to a constituency (by whatever name called) means a person whose name is entered in the electoral roll of that constituency, for the time being in force, and who is not subject to any of the disqualifications mentioned in Section 17”_ 14. Chapter III of the Act deals with constitution of Panchayats at different levels. Section 4(1) of the Act says thus: _“The Government shall, by notification in the Gazette, constitute with effect from such date as may be specified in the notification, -_ _(a) a Village Panchayat for each village or for group of Villages;_ _(b) a Block Panchayat at intermediate level; and_ _(c) a District Panchayat for each District Panchayat area and specify the names and headquarters of such Panchayats”._ 15. Chapter VI of the Act deals with preparation of electoral rolls. Section 16 of the Act mandates that for every constituency in a Village Panchayat there shall be an electoral roll prepared in accordance with the provisions of the Act. Section 17 of the Act deals with disqualifications for 7 OP(C) No.935 of 2017 registration in an electoral roll. It is quoted hereunder for profit: _“_ _**Disqualifications for registration in an electoral roll** .-(1) A person shall be disqualified for registration in an electoral roll if he,-_ _(a) is not a citizen of India; or_ _(b) is of unsound mind and stands so declared by a competent Court; or_ _(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections._ _(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included:_ _Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub-section (1) shall forthwith be reinstated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorising such removal.”_ Section 18 of the Act is very specific that no person shall be entitled to be registered in the electoral roll for more than one constituency. Section 19 of the Act clearly says that no person shall be entitled to be registered in the electoral roll for any constituency more than once. These provisions are relevant for consideration of the disputes. 8 OP(C) No.935 of 2017 16. Yet another provision to be mentioned here is Section 76 of the ## Act. It reads as follows: _“_ _**Right to vote** .- (1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of a constituency shall be entitled to vote in that constituency._ _(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in Section 17._ _(3) No person shall vote at a general election in more than one constituency of the same level, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void._ _(4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for that constituency more than one, and if he does so vote, all his votes in that constituency shall be void._ _(5) No person shall vote at any election if he is confined in a prison whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police._ _Provided that nothing in this subsection shall apply to a person subjected to_ 9 OP(C) No.935 of 2017 _preventive detention under any law for the time being in force.”_ 17. As the allegation is that some of the voters figured in the adjacent Municipality have also voted in the election, some provisions in the Kerala Municipality Act, 1994 (in short, “the Municipality Act”) are also relevant. In the Municipality Act, Section 2(14) defines “Election” in the following terms: _“'Election' means an election to fill any vacancy in any of the wards of any Municipality”._ Section 2(15) defines an “Elector” in the following terms: _“'Elector' in relation to any ward (by whatever name known) means a person whose name is included in the voters list, for the time being in force, in respect of that ward and who is not subject to any of the disqualifications referred to in section 74”_ Section 2(49) of the Municipality Act defines “ward” thus _“'ward' means a ward of a Municipality for the purpose of election of Councillors”_ Chapter VI of the Municipality Act contains provisions relating to the elections to Municipalities. Section 75 of the said Act prescribes that no person to be registered in the electoral roll for more than once. Section 76 of the Municipality Act, which deals with conditions of registration of a voter, is quoted hereunder: 10 OP(C) No.935 of 2017 _“_ _**Conditions of registration** .-Subject to the provisions of sections 74 and 75, every person who-_ _(a) is not less than eighteen years of age on the qualifying date; and_ _(b) is ordinarily resident in a ward in a Municipality, shall be entitled to be registered in the electoral roll for that ward._ _**Explanation** .-For the purposes of this section and section 78, “qualifying date” in relation to the preparation or revision of an electoral roll, means the first day of January of the year in which it is so prepared or revised.”_ Section 77 defines the expression “ordinarily resident” in the following terms: _“_ _**Meaning of “ordinarily resident** ”.-(1) A person shall not be deemed to be ordinarily resident in a ward in a Municipality on the ground only that he owns or is in possession of a dwelling house therein._ _(2) A person absenting himself temporarily from his place of ordinary residence shall not, by reason thereof, cease to be ordinarily resident therein._ _(3) A member of the Parliament or of the State Legislative Assembly or the Chairperson or_ 11 OP(C) No.935 of 2017 _Deputy Chairperson of a Municipality shall not, during the term of his office, cease to be ordinarily resident in the ward, in the electoral roll of which he is registered as an elector at the time of his election as such Member, Chairperson or Deputy Chairperson, by reason of his absence from that ward in connection with his duties as such Member of Chairperson or Deputy Chairperson, as the case may be._ _(4) A person who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or mental defectiveness or who is detained in prison or other legal custody at any place shall not, by reason thereof, be deemed to be or ordinarily resident therein._ _(5) Where a question arises as to whether a person is ordinarily resident at a place at any relevant time, the question shall be determined by the State Election Commission with reference to all the facts of the case and to such rules as may be made in this behalf.”_ Section 132 of the Municipality Act is _pari materia_ with Section 76 of the Act. These two provisions are closely connected to Section 62 of the Representation of People Act, 1951. 18. The Kerala Panchayat Raj (Registration of Electors) Rules, 12 OP(C) No.935 of 2017 1994 deals with the preparation of electoral roll in respect of each constituency. There are provisions in the Rules to make corrections in the entries and inclusion of names in the electoral roll. The Kerala Panchayat Raj (Conduct of Election) Rules, 1995 is touching upon the modality of the elections. Rule 32 speaks about challenging identity of a person claiming to be a particular elector in the constituency. The procedure for making the challenge has been clearly mentioned in the said Rule. Rule 33 of the said Rule is about the safeguards against personation. It says that every elector, whose identity the Presiding Officer or the Polling Officer is satisfied, shall allow his left forefinger to be inspected by the Presiding Officer or Polling Officer and an indelible ink mark to be put on it. If any elector refuses to allow to do as above, the Officer concerned shall refuse to supply with any ballot paper to the elector or allow him to vote. 19. Rule 35 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995 deals with the maintenance of secrecy of voting within Polling Station and voting procedure. Rule 55 speaks about custody of ballot boxes and other papers. Rule 55A (in Malayalam) added by SRO No.893 of 2005 with effect from 09.09.2005 (the relevant English translation of the Rule was not published) says about keeping the ballot papers, packets, cover containing vote register, memory chip of the electronic voting machine, etc. in the custody of the Electoral Officer in each district. It 13 OP(C) No.935 of 2017 further says that those records mentioned in the Rule shall not be opened or produced before any person without the orders from a competent court. 20. Now, coming to the various contentions raised, it has to be found that the impugned order is mainly attacked for the reason that it will affect the secrecy of election. 21. Sri.K.Gopalakrishna Kurup, the learned Senior Counsel appearing for the petitioner contended that the court below casually called for the records in violation of the settled legal principles. It is his submission that the observation in paragraph 8 of the impugned order that the question whether those evidence can be adopted for granting undue advantage by way of a ground not pleaded in the petition can be considered only at the final hearing of the petition is incorrect. Heavy reliance is placed on the decision in **Hari Ram v. Hira Singh (AIR 1984 SC 396)** . There is a marked distinction between the facts in **Hari Ram** 's case and this case. In that case, an interlocutory order passed by the High Court on an application by the respondent for directing the Returning Officer to produce the marked electoral roll for inspection was under challenge. The High Court granted further prayer of the respondent for allowing inspection of the counter foils. In that context, the Supreme Court held thus: _“Inspection of a ballot papers and counter foils should be allowed very sparingly and only_ 14 OP(C) No.935 of 2017 _when it is absolutely essential to determine the issue. In the garb of seeking inspection the defeated candidate should not be allowed to make a roving enquiry in order to fish out materials to set aside the election. So far as the counterfoils and the marked copy of the electoral rolls were concerned, there was a strict prohibition for opening these documents unless the Court was fully satisfied that a cast-iron case was made out for the same. ........”_ The same principle was reiterated in **Sasanagouda v.S.B.Amarkhed (AIR** **1992 SC 1163)** . That was a case wherein an election to the Karnataka Legislative Assembly was challenged on the ground of corrupt practices. Certain documents were sought to be produced at the time of trial. It would appear that the appellant's counsel in the High Court did not choose to file a counter to the application to press for a decision on the petition on merits. High Court allowed the petitions and summoned the documents. Supreme Court noticed that in the wake of insufficient pleadings to justify the summoning of the documents, the order passed by the High Court was not proper. To the extent mentioned in the judgment, the High Court order was set aside and while doing so, the principle in **Hari Ram** 's case was also considered. 22. Sri.S.Sreekumar, the learned Senior Counsel appearing for the 1[st] respondent contended that the principles in the above decisions have 15 OP(C) No.935 of 2017 no application to the facts in this case. Here, the main contention raised by the petitioner is regarding double voting by certain persons. Sri.S.Sreekumar relied on a decision rendered by this Court in **Omanakuttan v. Sajan Thomas (2004 KHC 684)** . Facts show that the main allegation therein was that three persons named in the petition were figured in the voters list of a particular Ward in a Grama Panchayat; two persons named in the petition were figured in the voters list of a Ward in another Grama Panchayat as well. It is the case that these persons had cast votes in respect of the disputed election to a Grama Panchayat. In that context, this Court observed that allowing a person to cast his vote in two constituencies, though they are adjoining Panchayats in the same Block, will constitute the mischief of double voting and the expression 'constituency' cannot be restricted to mean within the Panchayat alone. This decision assumes importance in the context of the contention raised by the learned Senior Counsel for the petitioner that the Act clearly defines what a constituency is and a person figuring in the voters list of a Ward in an adjacent Municipality cannot be treated as a person coming within the constituency of the Grama Panchayat. The distinction between the expressions “Ward” used in the Municipality Act and “constituency” in the Act, according to the learned Senior Counsel for the petitioner, has great significance and therefore the question of double voting does not arise in 16 OP(C) No.935 of 2017 this case. I am afraid, I cannot accept this contention. The avowed object in the Representation of People Act, 1951 and which has been copied in the subsequent legislations like the Municipality Act and the Act in question is that a person could exercise his right of franchise only in respect of one constituency, whether it will be called a “Ward” or in any other name in respect of an election. Stated precisely, a person cannot exercise his franchise in one Ward in a Grama Panchayat and also in a Ward of a Municipality. The expression “constituency” shall not be narrowly construed so as to enable a person to cast vote both in a Grama Panchayat and also in any other local authority, either be a Panchayat or any other local self government in a simultaneous election. The provisions of the Act and the Municipality Act quoted above strengthen my view. Therefore, the contention of the petitioner that the question of double voting does not arise cannot be accepted prima facie in the light of the legal provisions. 23. Another decision relied on by Sri.S.Sreekumar is **Noushad M.M. v. Thambilali Meethal Rajan and others (2014 KHC 470)** . That was a case wherein the election to Chelannur Grama Panchayat was challenged on the ground that names of some voters had appeared in different Wards of the same Grama Panchayat and they had cast their votes. In that context, it was held that an inspection of the ballot papers can be had only after the court trying the election petition enters a finding 17 OP(C) No.935 of 2017 that it is prima facie satisfied that the petitioner has made out the case pleaded by him. In the case on hand, there are sufficient pleadings justifying the application to summon documents. The learned District Judge has only directed the District Election Officer to produce the records at the time of evidence. I find no illegality or even irregularity in the impugned order. 24. It is the submission of the learned counsel for the petitioner that the entire records may not be relevant for resolving the dispute. That is a matter to be considered by the court below and the 1[st] respondent is duty bound to specify as to what are the documents relevant for proving his case of double voting. The court below by the impugned order has only decided the right of the respondent to reach at the documents at the appropriate time. In view of the above, I find no reason to interfere with the impugned order. Hence the original petition is dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**