Madhusudan K.P v. K.P. Pavithran and K.K. Velayudhan

``` OP(C) NO. 1692 OF 2022 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 OP(C) NO. 1692 OF 2022 ``` ``` AGAINST THE ORDER IN I.A. NO.2/2021 IN O.P (ELE) NO.4/2021 IN THE COURT OF THE PRINCIPAL MUNSIFF COURT, ERNAKULAM ``` ## **`PETITIONER/PETITIONER/1ST RESPONDENT:`** ``` MADHUSUDAN K.P AGED 44 YEARS S/O PALLIYAN, KARIPPAYIL KARIKKODU, MULANTHURUTHY P.O., ERNAKULAM, PIN - 682314 BY ADVS. P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA V.A.JOHNSON HANI P.NAIR R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT HARIKRISHNAN S. S.SREEKUMAR (SR.) ``` ## **`RESPONDENTS/RESPONDENTS/PETITIONER AND 2ND RESPONDENT:`** ``` 1K.P. PAVITHRAN, AGED 60 YEARS S/O PAINKILI, HOUSE NO.1110 B, KARAPPILIMATTAM, MULANTHURUTHY P.O., ERNAKULAM PIN - 682314 2K.K. VELAYUDHAN, AGED 55 YEARS S/O KUNJAN, KADVIL VEEDU, PERUMPILL P.O. PIN – 682314 ``` ``` OP(C) NO. 1692 OF 2022 ``` ``` 2 ``` ``` BY ADVS. R.DIVAKARAN RAMAKRISHNAN BINOI GEORGE (CHERUKARA)(B-378) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 1692 OF 2022 ``` ``` 3 ``` ## **JUDGMENT** Aggrieved and confronted with Ext.P4 order passed in I.A No.2/2021 in O.P. (Ele) No.4 /2021 by the Court of the Principal Munsiff, Ernakulam, the first respondent in the election petition has filed the original petition. The respondents are the petitioner and the second respondent in the election petition. 2. The relevant background facts leading to Ext.P4 order are as follows: 2.1. The petitioner is the returned candidate in the Local Self Government Institutions election held on 10.12.2020, to Ward No.12 of the Mulanthuruthy Grama Panchayat. 2.2. The petitioner and the first respondent had contested the election. The petitioner secured 245 valid votes and the first respondent secured 244 valid votes. Resultantly, the petitioner was declared the returned candidate on 16.12.2020. ``` OP(C) NO. 1692 OF 2022 ``` ``` 4 ``` 2.3. The first respondent has challenged the election of the petitioner through Ext.P1 election petition. 2.4. The petitioner filed I.A No.2/2021 (Ext.P2) challenging the maintainability of election petition. The petitioner had also submitted Ext.P3 argument notes. 2.5. The court below, by the impugned Ext.P4 order, has rejected Ext.P2 application. 2.6. Ext.P4 order is palpably wrong and unsustainable in law. Hence the original petition. 3. The first respondent has filed a counter affidavit denying the allegations in the original petition. The first respondent has contended that he has categorically pleaded the reasons and the grounds in the election petition, to declare the election of the petitioner as ‘null and void’. The court below has rightly declined to reject election petition at the threshold. The original petition is meritless and the same may be dismissed. 4. Heard; Sri.Ajay Ben Jose, the learned counsel ``` OP(C) NO. 1692 OF 2022 ``` ``` 5 ``` appearing for the petitioner and Sri.R.Divakaran, the learned counsel appearing for the first respondent. 5. Is there any illegality in Ext.P4 order, is the question that emerges for consideration. 6. The first respondent has filed the election petition under Sections 89, 92 and 102 of the Kerala Panchayat Raj Act, 1994 (in short ‘Act’), to declare the election of the first respondent as void. 7. The specific case of the first respondent in the election petition is that, the Electoral Officer had issued 12 postal ballots in the election to Ward No.12 of the Mulanthuruthy Grama Panchayat, as per Rule 22 of the Kerala Panchayat Raj (conduct of election) Rules, 1995 (in short ‘Rules’). 8. As per the Rules, an elector who has received a postal ballot is not permitted to cast his vote in the polling station. 9. In contravention to the Rules and despite the ``` OP(C) NO. 1692 OF 2022 ``` ``` 6 ``` objection of the first respondent, three electors namely, Mary, Sl.No.214, Jose, Sl.No.215 and Raji, Sl.No.93 cast their votes at the polling station. Another elector named Jainy, Sl.No.217, also attempted to cast her vote at the polling station, which was thwarted by the first respondent. Thus, the petitioner has been indulged in corrupt practice, which renders his election void. 10. The petitioner had filed Ext.P2 application, inter alia, contending that the allegations in the election petition are vague and does not fulfill the criteria laid down under the Act and, therefore, prayed that the election petition be rejected at the threshold as provided under Section 93 of the Act read with Order VI, Rule 16, and Order VII Rule 11 of the Code of Civil Procedure ( in short ‘Code’). 11. The court below, after considering the rival pleadings and the argument notes, arrived at the conclusion that the election petition cannot be rejected at ``` OP(C) NO. 1692 OF 2022 ``` ``` 7 ``` the threshold invoking Order VII Rule 11 of the Code because the objections raised by the petitioner are matters to be decided after trial. 12. The learned counsel appearing for the petitioner submitted that the first respondent has failed to plead material facts and the specific instances of the alleged corrupt practice as laid down by the Hon’ble Supreme Court in **Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi** [AIR 1987 SC 1577] and **Ram Sewak Yadav v. Hussain Kamil Kidwai and others** [AIR 1964 SC 1249]. Therefore, the court below ought to have rejected the election petition invoking its powers under Order VII Rule 11 of the Code read with the provisions of the Act. 13. The learned counsel appearing for the first respondent countered the above submission and contended that the first respondent has in explicit terms averred in paragraphs 9 to 11 of Ext.P1 election petition the corrupt practices indulged by the petitioner. ``` OP(C) NO. 1692 OF 2022 ``` ``` 8 ``` Therefore, the court below was right in dismissing Ext.P3 application. ## 14. The first respondent’s case in Ext.P1 Election Petition is as follows: “9. It is respectfully submitted that petitioner was contesting in ward No.12 of the Mulanthuruthy Grama Panchayat. The Electoral Officer issued 12 postal ballet papers in Ward No.12 of the Mulanthuruthy Grama Panchayat. As per Rule 22 of the Kerala Panchayat Raj (conduct of Election) Rule, 1995, the elector, who received postal ballet papers are not allowed to cast their vote in the polling station. In ward No.12 of the Mulanthuruthy Grama Panchayat, three electors who received postal ballot papers came to the polling station which was objected by the petitioner and his agents. But the Returning Officer without considering the objection raised by the petitioner and allow them to cast their vote in the polling station by violating and non-compliance of the provisions of Sub Rule 3 (a) (b) (c) of Rule 22 of the Kerala Panchayat Raj (conduct of election) Rules. As per the above Rule, these three electors votes are invalid and may be considered as void. 10. The Returning Officer declared the result of election on 16.12.2020 and declared the 1[st] respondent was elected as the ward member of 12[th] ward of Mulanthuruthy Grama Panchayat with a margin of only 1 (one) vote. Immediately after the declaration, on 19.12.2020, the petitioner issued a registered ``` OP(C) NO. 1692 OF 2022 ``` ``` 9 ``` notice to the State Election Commissioner, District Collector and the Electoral Officer of Mulanthuruthy in this regard and to declare the election of the 1[st] respondent (UDF) candidate may be declared as void and declare the petitioner as duly elected candidate in ward No.12 of Mulanthuruthuy Grama Panchayat on the ground that the electoral officer if not permitted to cast these three electors (1) by name in serial No.214, one Mary, W/o.Varghese, Attingal house in voter **ID No.KL-12/079/177071, (2)** in Serial No.215 Jose, S/o.Varghese, Attingal House in Voter **ID No.KL/12/079/177729,** (3) in serial No.93 by name Raji, w/o.Sajan, Puthiyaparambil in election ID No. **KQSO798934** , the 1[st] respondent will not be elected. These three electors are the workers of the UDF and they cast their vote in favour of the 1[st] respondent by violating the provisions of sub rule 3 (a) (b) (c) of Rule 22 of the Kerala Panchat Raj (conduct of election) Rules. If these three electors were not cast their vote in the polling station, petitioner will win with 2 votes margin. Another elector by Sl.No.217 by name Jainy, W/o. Joseph, Attingal House, in voter ID No. **KL-20/079/252663** came to the polling station, she is also received postal ballet paper for the election and due to the strong objections raised by all the polling agents present at that time she returned without casting her vote. 11. Petitioner respectfully submits that the three electors “received” postal ballet papers to cast their vote by violating the provisions of the Kerala Panchayat Raj (conduct of election) Rules. If the Returning Officer entered in the marked copy of the elector roll as per Rule (b) make a mark P.B. against the name of the elector, they will not cast their vote in the polling station and also ``` OP(C) NO. 1692 OF 2022 ``` ``` 10 ``` the Electoral officer shall not allow them to cast their vote in the polling station as per Rule (c) of the above Rule. The petitioner therefore respectfully submits that the election to the 1[st] respondent is liable to be set aside and the petition granted relief prayed for in the petition, on the following mainly among other:” 15. On a reading of the above extracted paragraphs, I have no doubt in my mind that, the first respondent has specifically pleaded the corrupt practices allegedly committed by the petitioner. 16. This Courts finds no reason to take a contrary view from Ext.P4 order and hold that the above pleadings are vague and the election petition has to be rejected before trial. 17. The allegation whether the three persons to whom the postal ballot papers were issued were persons on election duty and had casted their votes at the polling station etc, is a matter to be decided after trial. 18. According to me, the pleadings in paragraphs 9 to 11 are materially sufficient to sustain the election ``` OP(C) NO. 1692 OF 2022 ``` ``` 11 ``` petition. The court below has not overstepped its bounds of authority or power, and there are no circumstances or grounds made out in the original petition, warranting interference with Ext.P4 order under Article 227 of the Constitution of India. The original petition is meritless and is only liable to be dismissed. **Sd/-** **C.S.DIAS** ma/2.2.2023 **JUDGE** ``` OP(C) NO. 1692 OF 2022 ``` ``` 12 ``` ## **`APPENDIX OF OP(C) 1692/2022`** ``` PETITIONER EXHIBITS Exhibit P1 ``` - `TRUE COPY OF O.P.(ELE) NO.4/2021 FILED BY THE 1ST RESPONDENT BEFORE THE HONOURABLE COURT OF THE PRINCIPAL MUNSIFF COURT, ERNAKULAM` - `Exhibit P2 TRUE COPY OF ORDER IN I.A. NO. 2/2021 IN O.P.(ELE) NO.4 OF 2021 FILED BEFORE THE PRINCIPAL MUNSIFF, ERNAKULAM, CHALLENGING THE MAINTAINABILITY OF EXHIBIT.P1 ELECTION PETITION` - `Exhibit P3 TRUE COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONER IN EXHIBIT.P2` - `APPLICATION CHALLENGING THE` - `MAINTAINABILITY OF EXHIBIT.P1 ELECTION PETITION` - `Exhibit P4 TRUE COPY OF THE ORDER DATED 06/08/2022 IN I.A. NO. 2/2021 IN O.P.(ELE) NO.4 OF 2021 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM` - `RESPONDENT EXHIBITS` - `Exhibit R1 (a)` ``` The true copy of the Counter Affidavit filed by the at respondent before the Court Below ``` - `Exhibit R1 (b) The TRue copy of the Petition in I.A No. 3/2021 in OP(Election) 4/2021` ``` The true copy of the order dated Exhibit R1(c)6/8/2022 in I.A No. 3/2021 in OP(Election) 4/2021 ```