K.S.SAUDA BEEVI v Subaida Pareeth, Pushpa Ravi, Abida Ashraf

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR.JUSTICE V.CHITAMBARESH THURSDAY, THE 29TH DAY OF NOVEMBER 2012/8TH AGRAHAYANA 1934 CRP.No. 407 of 2012 () ---------------------AS(ELE).8/2012 of DISTRICT COURT, ERNAKULAM E.O.P.5/2010 of MUNSIFF COURT, PERUMBAVOOR REVISION PETITIONER(S)/APPELLANT/FIRST RESPONDENT: ----------------------------- K.S.SAUDA BEEVI D/O.SULAIMAN, PUTHENPURAYIL HOUSE, NOOLELI ASAMANNOOR P.O., PIN-683549. BY ADVS.SRI.P.V.BALAKRISHNAN SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S)/RESPONDENTS/PETITIONER : ------------------- ## 1. SUBAIDA PAREETH W/O.PAREETH, CHATHERI HOUSE, NOOLELI ASAMANNOOR P.O., PIN-683549. ## 2. PUSHPA RAVI D/O.KUTTAPPAN, PULIKAL HOUSE, PANICHAYAM NEDUNGAPRA P.O., PIN-683545. ## 3. ABIDA ASHRAF D/O.MAMMAD, THOTTATHIKUDI HOUSE, NOOLELI ASAMANNOOR P.O., PIN-683549. R1 BY ADV. SRI.C.S.AJITH PRAKASH R1 BY ADV. SRI.C.S.YESUDAS THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-11-2012, THE COURT ON 29-11-2012 PASSED THE FOLLOWING: **“C.R. “** **V.CHITAMBARESH, J. ------------------------------C.R.P.No.407 of 2012 ------------------------------Dated this the 29[th] day of November, 2012** ## **O R D E R** Can the enquiry in a petition for recrimination commence when once the result of the declared candidate has been found to be materially affected or only after the declaration that his election is void in the election petition? Should not the appellate court being the final court of facts compare the signatures found in the relevant documents by itself in order to decipher as to whether there has been double voting or voting by impersonation? These issues crop up in an election petition filed under Section 89 of the Kerala Panchayat Raj Act, 1994 ('the Act' for short) which stands allowed by the election court and confirmed in appeal. 2. The following are the tally of votes secured by all the candidates who contested from Ward No.VI of Asamannoor Grama Panchayat in Ernakulam District in the election held under the provisions of the Act on 25.10.2010: C.R.P.No.407 of 2012 2 |Sl. No.<br> Candidate<br>1.<br>Election Petitioner<br>2. Returned Candidate<br>3.<br>Second respondent<br>4.<br>Third respondent|Votes Secured| |---|---| ||324<br>324<br>132<br>100| The Returning Officer found that an equality of votes of 324:324 exists and therefore decided to draw a lot between the election petitioner and the returned candidate as enjoined under Section 79 of the Act. The addition of one vote would have entitled any one of those candidates to be declared elected and the election process proceeded as if the candidate on whom the lot fell had received an additional vote. The declaration of result followed on 27.10.2010 and the same was challenged by the election petitioner under Section 102(1)(d) (iii) of the Act on the ground that there has been an improper reception of void votes. The election petitioner contended that a total number of four votes are liable to be eschewed from the account of the returned candidate on the ground of double C.R.P.No.407 of 2012 3 voting and impersonation. The returned candidate filed a petition for recrimination under Section 99 of the Act contending that a total number of four votes are liable to be eschewed from the account of the election petitioner on the same grounds. The election court held that two voters had cast double votes and that one vote had been cast by impersonation after a composite enquiry of the election petition and the petition for recrimination. Three votes were eschewed from the account of the returned candidate and two votes from the account of the election petitioner in that exercise. The total number of votes varied to 321:322 and hence the election of the returned candidate was declared to be void and the election petitioner declared as the successful candidate. The decision of the election court was unsuccessfully impugned in appeal filed by the returned candidate under Section 113 of the Act and the challenge is pursued in this Civil Revision Petition. 3. Mr.P.V.Balakrishnan, Advocate on behalf of the C.R.P.No.407 of 2012 4 returned candidate contended that an enquiry in the petition for recrimination was warranted if and only when his election was declared to be void in the election petition. It may be true that two voters by name Kumaran Nair (PW.2) and Boban Thampi (PW.3) had cast double votes as was found in the election petition by the courts below. But the extrication of those two votes revealed that one was cast in favour of the returned candidate and the other in favour of the election petitioner again equalising the tally of votes to 323:323. The decision of the Returning Officer in the contingency of equality of votes under Section 79 of the Act would be effective also for the purpose of the election petition. Reliance was placed on Section 104 of the Act which is extracted below: ## **104. Procedure in case of an equality of** **votes** -- If during the trial of an election petition it appears that there is an equality of votes between any candidates at the election and that the addition of one vote would entitle any of those candidates to be declared elected, then-- (a) any decision made by the returning officer under the provisions of this Act shall, insofar as it C.R.P.No.407 of 2012 5 determines the question between those candidates, be effective also for the purposes of the petition; and (b) insofar as that question is not determined by such a decision the Court shall decide between them by lot and proceed as it the one on whom the lot then falls had received an additional vote. It was pointed out that the tally of votes of 323:323 as between the returned candidate and the election petitioner was upset as 321:322 only after the enquiry in the petition for recrimination. It was asserted that the enquiry in the petition for recrimination could not have commenced at all when the election of the returned candidate was not liable to be declared void in the election petition. 4. Mr.C.S.Ajith Prakash, Advocate on behalf of the election petitioner contended that the returned candidate cannot bank on the decision of the Returning Officer on the equality of votes in the instant case. This is because the tally of votes of 324:324 at the time of counting by the Returning Officer was varied to 323:323 after the enquiry in the election petition by the election court. The sanctity of the decision of C.R.P.No.407 of 2012 6 the returning officer on the equality of votes under Section 79 of the Act would be effective for the purpose of the election petition only if the tally continues to be the same. Section 104 (a) of the Act making the decision of the Returning Officer effective also for the purpose of the election petition cannot have any application when the tally of votes was altered from 324:324 to 323:323. The enquiry in the petition for recrimination was warranted since the result of the election of the returned candidate had been ' _materially affected_ ' after the enquiry in the election petition. The enquiry in the petition for recrimination disclosed that two voters by name Maitheen (PW.7) and Khadeeja (PW.8) had cast double votes and that the vote of Mohammed (PW.6) was cast by impersonation. This brought the tally of votes as between the returned candidate and the election petitioner to 321:322 necessitating a declaration to set aside the election and further declare the successful candidate. 5. I am of the firm view that the decision of the C.R.P.No.407 of 2012 7 Returning Officer under Section 79 of the Act when there was an equality of votes would be effective also for the purpose of the election petition only if the tally of votes continues to be the same. The number of votes in the instant case as between the returned candidate and the election petitioner was altered from 324:324 to 323:323 after an enquiry in the election petition on the basis of evidence. The benefit of Section 104 (a) of the Act cannot therefore be called in aid by the returned candidate to maintain that the draw of lot by the Returning Officer would be effective also in the election petition. A fresh draw of lot as between the returned candidate and the election petitioner would have been necessary in the absence of a petition for recrimination. The enquiry in the petition for recrimination was warranted since the result of the returned candidate had been _'materially affected'_ notwithstanding that a declaration to the effect that his election is void was not made. The Supreme Court in **Ahammed Kabeer v. Azeez** [(2003) 2 KLT 472 (SC)] after referring to **Jabar Singh v. Genda Lal** C.R.P.No.407 of 2012 8 [AIR 1964 SC 1200] and a catena of other decisions on the point summed up as follows:- 33. .......... - (1) ................ - (2) A recrimination by the returned candidate or any other party can be filed under S.97(1) in a case where in an election petition an additional declaration is claimed that any candidate other than the returned candidate has been duly elected. - (3) For the purpose of enabling an enquiry that any votes have been improperly cast in favour of any candidate other than the returned candidate or any votes have been improperly refused or rejected in regard to the returned candidate the election court shall acquire jurisdiction to do so only on the two conditions being satisfied: (i) the election petition seeks a declaration that any candidate other than returned candidate has been duly elected over and above the declaration that the election of the returned candidate is void; and (ii) the recrimination petition under S.97(1) is filed. - (4) ................ - (5) - ................ C.R.P.No.407 of 2012 9 The above decision though rendered in the context of the provisions of the Representation of the People Act, 1951 applies on all fours to the case on hand wherein also the conditions prerequisite are fully satisfied. I should also bear in mind that **Jabar Singh's** case and **Janardan Dattuappa Bondre's case** [AIR 1974 SC 1617] dealt with situations where a petition for recrimination was absent. The commencement of enquiry by the election court in the petition for recrimination when the result of the declared candidate was found materially affected cannot therefore be faulted with. 6. I am however disturbed at the fact that the appellate court though a final court of facts has not by itself compared the disputed signatures of the challenged voters found in the various documents. The lower appellate court in para 9 of the judgment observed as follows:- “Court below compared the signature in Ext.X9 counter foil with that of PW.2 in his deposition and found out striking similarities.” It was observed again in para 11 of the judgment as follows:- C.R.P.No.407 of 2012 10 “Court below compared the signatures in Exts.X17 and X18 under Section 73 of Evidence Act and came to the conclusion that both signatures are similar.” Finally the lower appellate court in para 15 of the judgment observed as follows:- “Factually also it can be seen that in this case, the trial court had only compared the signatures of a few voters and therefore the chance of error will be almost an impossibility. Hence it is evident that the court below was perfectly justified in comparing the signatures of Pws.2, 3 and 7 with the admitted signatures and arriving at the conclusion that they cast double votes. ” It is thus clear that the appellate court had not taken upon itself the task of comparing the signatures with naked eye as empowered under Section 73 of the Indian Evidence Act, 1872 even though it was a final court of facts. There was a divergence of judical opinion as to whether the election court could indulge in the comparison of the disputed signature or writing with the admitted or proved signature or writing. Divergent views were so expressed in **Neelalohitadasan** C.R.P.No.407 of 2012 11 **Nadar v. George Mascrene** [1994 (1) KLT 887] and **O.Bharathan v. K.Sudhakaran and another** [1996 (2) SCC 704]. But this Court chose to follow the dictum in **Neelalohitadasan Nadar's** case in **Mohammed Rafi.S. v. Fathahudeen and others** [ILR 2008 (3) Kerala 641] . The same was done in **Indulekha v. Preetha Kumari and others** [2010 (2) KHC 113] also obviously because the decision in **Neelalohitadasan Nadar's** case was rendered by a Larger Bench. I also notice that the dictum in **Neelalohitadasan Nadar's** case has been quoted with approval in **Kuldip Nayar** **v. Union of India** [2006 (7) SCC 1] to hold that purity of election is utmost than secrecy. 7. There is no indication anywhere in the judgment of the lower appellate court that the signatures were compared by itself to concur with the finding of the election court except merely stating that the trial court had done the comparison. The Supreme Court later in **I. Vikheshe Sema v. Hikishe Sema** [1996 (4) SCC 53] had directed as follows:- C.R.P.No.407 of 2012 12 “We depute the Registrar (Judicial) of this Court to make an inspection after notice to and in the presence of the parties and their counsel, of all the said ballot papers, identify the void votes which had been cast in respect of Polling Stations Nos.5, 6, 21 and 28 and to exclude the said votes and then count the number of votes received by each of the five candidates. The report should be submitted to this Court by the Deputy Registrar within eight weeks.” I therefore set aside the judgment of the appellate court and remand A.S. (Election) No.8/2012 to the court of the District Judge of Ernakulam for _de novo_ consideration after following the course as above. The appellate court shall commence the enquiry in the petition for recrimination if it is found that the result of the declared candidate has been materially affected after the enquiry in the election petition. The same has to proceed stage wise even though it is a composite enquiry of the election petition and the petition for recrimination as held in **Abdulla Haji v. Mohammed** (2008 (4) KHC 215). The appellate court shall by itself compare the signatures of the C.R.P.No.407 of 2012 13 disputed voters found in the vote register, counter foil of the ballot papers, the summons and also the deposition to reach a safe conclusion. The appellate court shall do so in the presence of the parties to the election petition and their counsel either to concur with the opinion of the election court or differ from it. The parties will appear in the appellate court on 10.12.2012 and the proceedings shall be taken to a logical end without delay during which time the status quo as on today would continue. The Civil Revision Petition is allowed. No costs. **V.CHITAMBARESH JUDGE** nj.