Mubarak Hassan v. Bushra Sulekha

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 CRP.No. 673 of 2008 --------------------------------- EA.6/2007 of D.C & SESSIONS COURT,TRIVANDRUM OPEP.18/2005 of ADDL.MUNSIFF COURT, NEDUMANGAD .................... ## PETITIONER/APPELLANT/RESPONDENT: MUBARAK HASSAN, D/O.ABDUL RASHEED, HOUSE NO.244, ROADARIKATHU VEEDU, PANAVOOR VILLAGE, PANAVOOR P.O., NEDUMANGADU, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR ## RESPONDENT/RESPONDENT/PETITIONER: BUSHRA SULEKA ,D/O. SULEKHA BEEVI, HOUSE NO. 190, THADATHARIKATHU VEEDU, PANAVOOR VILLAGE, PANAVOOR P.O., NEDUMANGAD, THIRUVANANTHAPURAM. ADV. SRI.LATHEESH SEBASTIAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/12/2008, THE COURT ON 17/12/2008 PASSED THE FOLLOWING: K.P. Balachandran, J. -------------------------- C.R.P.No.673 of 2008 -------------------------- ## **ORDER** Petitioner was the returned candidate in the election held on 24.9.2005 to Ward No.VIII of Panavoor Grama Panchayat. In the election, altogether 658 votes were polled, out of which, the petitioner got 328 votes, respondent got 323 votes and 7 votes were invalid. Thus, the petitioner was elected by a majority of five votes and the result was so declared on 27.9.2005. 2. Respondent filed O.P.(Ele.)No.18/05 assailing the election of the petitioner to the Panavoor Grama Panchayat from Ward No.VIII. She alleged that 19 voters enrolled their names in two constituencies and exercised their votes including in Ward No.VIII; that the result of the election was, thus, materially affected by 19 voters casting double votes; that 19 votes have to be invalidated and that she has to be declared as elected treating the election of the petitioner as void. On the CRP 673/08 2 basis of comparison of signatures in the counter foils of ballot papers of the 19 persons, who were alleged to have so cast double votes, the trial court found that 13 persons had cast their votes in two wards and consequently, their votes were invalid; that out of the 13 votes, 11 votes were polled in favour of the petitioner and two were in favour of the respondent (petitioner in the election petition) and accordingly held that the respondent obtained 321 votes as against 317 votes secured by the petitioner and consequently, declared the respondent elected. Petitioner filed Election Appeal No.6/06 before the District Court, Thiruvananthapuram and the District Judge, vide judgment passed on 22.8.2008, dismissed the appeal concurring with the finding of the court below and hence this revision. 3. It is vehemently contended before me by the learned counsel for the petitioner that out of 13 persons, who were held to have cast double votes, the learned Munsiff has found that PWs 7, 8, 9 and CRP 673/08 3 13 cast double votes comparing their signatures in the counter foils of ballot papers marked respectively as Exhibits X-12(a), X-10(c), X-11(b) and X-11(a) respectively with Exhibits X-21, X-16, X-17 and X-18, which are only certified photostat copies of counter foils of ballot papers produced in another suit; that those certified photostat copies were wrongly admitted in evidence as conditions to admit secondary evidence had not been established and the originals were very much available for being called for, for examination, those having been produced in another election petition pending before the same court and that therefore, the votes cast by PWs 7, 8, 9 and 13 should not have been invalidated. It is further argued by the learned counsel for the petitioner that finding of the court below that PWs 16, 21, 12, 10, 11, 19, 18, 14 and 15 cast double votes is by comparing the signatures of those witnesses in the counter foils of ballot papers issued to them in Ward No.VIII, either with their signatures in CRP 673/08 4 the vakalath and depositions recorded by the court or that the signatures alleged to have been put by them in the counter foils of ballot papers issued to them in other constituencies; where, they were alleged to have exercised their votes and that comparing of the signatures by the court without having got those signatures compared by an expert should not have been accepted to enter a finding to the effect that those witnesses had cast double votes. The contention so canvassed has rightly been rejected by the courts below in view of the decision of the Apex Court in **Neelalohithadasan Nadar v. George Mascrene** (1994 (1) KLT 887), wherein the Apex Court held that the court has got power to compare the signatures in election cases under Section 73 of the Indian Evidence Act to advance justice. 4. It is worthy to remember that in election cases, if signatures are to be got verified through experts and examining them to establish its correctness, it may so happen that the tenure of CRP 673/08 5 the returned candidate itself will be over by the time the case is decided by the trial court as also by the appellate and revisional courts. When confronted with the above situation, counsel for the petitioner submitted that at least in relation to the votes alleged to have been cast in other constituencies by PWs 7, 8, 9 and 13, the comparison made by the courts below with the signatures in certified photostat copies of counter foils of ballot papers in those constituencies should not have been accepted and upheld for the reason that the pre-requisites for admission of secondary evidence of those certified photocopies had not been established and the originals which could have been got down, were not got down and verified with the signatures of those witnesses, namely, PWs 7, 8, 9 and 13 respectively in the counter foils of the ballot papers issued to them, which are respectively Exhibits X-12(a), X-10(c), X-11(b) and X-11(a). CRP 673/08 6 5. The contention so advanced is no doubt with force and is liable to be upheld as the originals itself were available for perusal and those were not got down and certified photocopies of Exhibits X-21, X-16, X-17 and X-18 were being wrongly admitted in evidence, when there was no circumstance to admit those copies as secondary evidence. The conditions necessary to admit documents as secondary evidence under Section 65 of the Indian Evidence Act are not satisfied in this case. Consequently therefore, the finding that double votes were cast also by PWs 7, 8, 9 and 13 deserves to be set aside, as that is not established and I do so. The ballot papers issued to PWs 7, 8, 9 and 13 respectively under the counter foils of Exhibits X-12(a), X-10(c), X-11(b) and X-11(a) are respectively Ballot Paper Nos.93, 242, 318 and 317. Out of these ballot papers, votes cast under Ballot Paper Nos.93, 242 and 318 are in favour of the petitioner herein and the vote cast vide Ballot Paper No.317 is in favour of the CRP 673/08 7 respondent. These votes were being excluded as invalid votes by the courts below. In view of my finding that the said four votes are not established to be invalid for reason of PWs 7, 8, 9 and 13 having cast double votes as alleged by the respondent (petitioner in the election petition), those four votes are to be held as valid votes. Consequently therefore, three votes are to be added to 317 votes secured by the petitioner and one vote has to be added to 321 votes secured by the respondent, who was the petitioner in the election petition. Then the votes secured by the petitioner will be 320 and the votes secured by the respondent will be 322. The result is that, as held concurrently by the courts below, the respondent has to be declared as having won the election setting aside the election of the petitioner from Ward No.VIII of Panavoor Grama Panchayat, though the respondent won the election by a majority of only two votes and not by a majority of four votes as held by the courts below. Hence, concurring CRP 673/08 8 with the decision of the courts below declaring the respondent as the returned candidate setting aside the election of the petitioner as void, this revision petition deserves to be dismissed. In the result, I dismiss this revision petition. Registry is directed to send back the records to the court below forthwith and to communicate the order of this Court to the State Election commission and the President of the Panavoor Grama Panchayat without any further delay, as provided under the Kerala Panchayat Raj Act and the Kerala Panchayat Raj Conduct of Election Rules. 17[th] December, 2008 (K.P.Balachandran, Judge) tkv