Naseema Shamsudheen v. Sheeba Shanavas and Raj Mahesh (Raj R. Nair)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945 ``` ``` CRP NO. 241 OF 2022 ``` ``` IN A.S. (ELECTION) NO.27/2022 OF DISTRICT & SESSIONS COURT, ``` ## **`ALAPPUZHA`** ``` IN O.P.(ELC) NO.1/2011 OF MUNSIFF'S COURT, KAYAMKULAM ``` ## **`REVISION PETITIONER/APPELLANT/1ST RESPONDENT:`** ``` NASEEMA SHAMSUDHEEN AGED 50 YEARS, W/O.SHAMSUDHEEN, JAMEELA COTTAGE, MSM COLLEGE WEST, KEERIKAD SOUTH, KAYAMKULAM, PIN - 690 502. ``` ``` BY ADVS. T.K.AJITHKUMAR (VALATH) N.N.SUGUNAPALAN (SR.) ``` ## **`RESPONDENTS/RESPONDENTS//ELECTION PETITIONER & 2ND RESPONDENT:`** |**`1`**|**`SHEEBA SHANAVAS`**| |---|---| ||**`AGED 47 YEARS, W/O.SHANAVAS,`**| ||**`PATTANIPARAMBIL HOUSE, KANNAMPALLY BHAGAM MURI,`**| ||**`KERRIKAD VILLAGE, KAYAMKULAM MUNICIPALITY,`**| ||**`KAYAMKULAM, ALAPPUZHA, PIN - 690 502.`**| |**`2`**|**`RAJI MAHESH (RAJ R.NAIR)`**| ||**`AGED 33 YEARS, W/O.MAHESH,`**| ||**`SREENILAYAM, KANNAMPALLY BHAGAM,`**| ||**`KAYAMKULAM, PIN - 690 502.`**| ``` BY ADVS. P.K.VARGHESE(V-42) (CAVEATOR) P.K.VARGHESE M.T.SAMEER K.R.ARUN KRISHNAN JERRY MATHEW REGHU SREEDHARAN RAMEEZ M. AZEEZ ``` ``` THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON ``` ``` 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` C.R.P.NO.241 OF 2022 ``` ``` - 2 - ``` ``` “C.R.” ``` ## **`O R D E R`** ``` Dated this the 28[th] day of February, 2024 ``` ``` The first respondent in Election Petition No.1/2021, who is the appellant in A.S. (Election) No.27/2022, is the petitioner herein. The election under challenge pertains to the post of Councillor in Ward No.XXXIX of Kayamkulam Municipality, which was conducted on 08.12.2020. The results declared the petitioner herein as the returned candidate, having secured 433 votes. The first respondent herein secured 432 votes. The election was challenged by the first respondent herein on two grounds, the first of which pertains to refusal of two postal votes by the counting officer and the second, regarding the consideration of one tender vote. The election petition was allowed by the learned Munsiff, as ``` ``` C.R.P.NO.241 OF 2022 ``` ``` - 3 - ``` ``` per order dated 24.03.2022, from which, both the petitioner and the first respondent herein carried appeals before the District Court, Alappuzha, vide A.S. (Election) Nos.27/2022 and 39/2022. Both the election petitions were dismissed, confirming the order of the learned Munsiff, with the consequence, the first respondent herein was declared as elected. ``` ## **`2. Heard Sri.N.Sugunapalan, learned Senior`** ``` counsel - instructed by Adv.T.K.Ajithkumar - on behalf of the petitioner and Sri.P.K. Varghese on behalf of the first respondent. There is no representation for the 2[nd] respondent. ``` ``` 3.Learned Senior counsel would urge that both the Munsiff's Court, as well as the District Court, erred in arriving at a conclusion that the first respondent herein had obtained 434 votes, even if the tender vote was considered in terms of law. Heavy reliance was placed upon the ``` ``` C.R.P.NO.241 OF 2022 ``` ## **`- 4 -`** ``` judgment of the Hon'ble Supreme Court in ``` ``` Dr.Wilfred D'Souza vs Francis Menino Jesus Ferrao ``` ``` [(1977) 1 SCC 396] as regards the course to be followed, in a case where tender vote has been cast; and the manner in which it is liable to be treated. Relying on paragraph No.14 of the judgment, it was urged that a tendered ballot paper can be taken into account after establishing two points – namely; (1) the person who cast the initial vote as a voter on a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number, and (2) it was the genuine voter, who marked the tendered ballot paper. If the above points are proved, the consequence stipulated by the Hon'ble Supreme Court in that judgment is that the court would exclude the vote initially cast by the person, other than the genuine voter, from the number of votes of the candidate in whose favour it was cast; and secondly, the court would further take ``` ``` C.R.P.NO.241 OF 2022 ``` ``` - 5 - ``` ``` into account the tendered ballot paper in favour of the candidate, in whose favour it was duly marked. On facts, it was pointed out by the learned Senior counsel that the vote cast by Sl.No.196 was wrongly marked as against Sl.No.192 and the candidate as against Sl. No.192 casted her vote subsequently. In such circumstances, the course open, going by the law laid down by Dr.Wilfred D'Souza's case (supra), is to exclude the earlier vote cast by Sl.No.196 (erroneously marked as against Sl.No.192) and to count the vote cast by Sl.No.192 subsequently, which was treated as a tendered vote. If that course is adopted, then the tendered vote, which was proved to be in favour of the first respondent (LDF candidate) will still remain as 432, since the earlier vote cast will have to be excluded from the total votes obtained by the first respondent, the LDF candidate. As an alternative, it was suggested that, out of the total votes of 1031, one vote which was erroneously cast will have to ``` ``` C.R.P.NO.241 OF 2022 ``` ``` - 6 - ``` ``` be deleted and then, the tendered vote will have to be counted, in which case also, the total number of votes will be 1031. It is the submission of the learned Senior counsel that after that exercise, a re-counting will have to be effected to find out, who has secured the majority number of votes. In the instant case, neither the learned Munsiff, nor the learned District Judge laboured to find out, as to in whose favour, the first vote was cast. Therefore, the course adopted in the judgment is erroneous, is the submission made. ``` ``` 4.It was also contended that the judgment of the learned Munsiff cannot be sustained, inasmuch as it failed to frame the issues, as mandated by the judgments of the Hon'ble Supreme Court in Makhan Lal Bangal v. Manas Bhunia & Ors. [[(2001) 2 SCC 652] (paragraph Nos.18 and 19) and also in Kalyan Singh Chouhan v. C.P. Joshi [(2011) 11 SCC ``` ``` 876]. The specific issue as to how the earlier ``` ``` C.R.P.NO.241 OF 2022 ``` ``` - 7 - ``` ``` vote cast and as to how the tender vote is to be dealt with is crucial in the facts of this case and the failure to frame an issue in this regard is fatal, according to the learned Senior counsel. ``` ``` 5.Per contra, the learned counsel for the first respondent would submit that this is not a case, which falls within the ambit of a tendered vote, governed by Rule 38 of the Kerala Municipality (Conduct of Election) Rules, 1995. Learned ``` ``` counsel would explain on facts that both Sl.No.192 and 196 are having the name 'Amina'. When the real voter as against Sl.No.196 came to vote, the polling officer committed a mistake in striking out Sl.No.192 erroneously, in token of having tendered vote, instead of striking out Sl.No.196. Thereafter, the real candidate as against Sl.No.192 came, whereupon the issue arose; and the same was treated as a tendered vote. As a matter of fact, the course adopted was ``` ``` C.R.P.NO.241 OF 2022 ``` ``` - 8 - ``` ``` wrong inasmuch as there is no case, whatsoever, of any impersonation. As already indicated, there are two candidates by the same name, called 'Amina' and both were eligible and genuine voters, wherefore the votes cast by both the voters are liable to be counted, is the submission made by the learned counsel. According to the learned counsel, the question of exclusion of the former vote, for the purpose of inclusion of the tendered vote, as coined inDr.Wilfred D'Souza's case (supra) does not apply in the instant facts. Both the votes are liable to be counted; and since the first vote has already been counted and given credit of to the candidate in whose favour it was tendered, all what remains was to ascertain the candidate in whose favour the tendered vote was cast. It has been established in evidence that the tendered vote was in favour of the first defendant (first respondent herein). If that is taken into account, the total number of votes obtained by ``` ``` C.R.P.NO.241 OF 2022 ``` ``` - 9 - ``` ``` the first defendant will become 433, whereby a situation is created that the petitioner, as also, the first respondent, would share equal number of votes. In such situation, as provided in Section 180 of the Kerala Municipalities Act, a lot was taken, which went in favour of the first respondent herein and accordingly, he was declared successful as the returned candidate. ``` ``` 6.Thus, according to the learned counsel, when the tendered vote was counted in favour of the first respondent and the deemed vote on account of Section 180 of the Municipalities Act, by way of lot has also favoured the first respondent, the total number of votes will be 434, wherefore, the course adopted by the learned Munsiff is perfectly correct. ``` ``` 7.Having heard the learned counsel appearing on both sides, this Court notice the following facts, which are not disputed. There are two ``` ``` C.R.P.NO.241 OF 2022 ``` ## **`- 10 -`** ``` eligible voters by name 'Amina' as against Sl.Nos.192 and 196 in the voters list. The person 'Amina' as against Sl.No.196 came first to vote. But her vote was erroneously marked as against Sl.No.192 in the voters list, which is obviously/ patently an error committed by the polling officer. Evidence adduced would establish the same and there is no serious dispute with respect to this matter. It is also established that the person by name 'Amina' pertaining to Sl.No.192 came to cast her vote subsequently, whereupon only the issue sprouted, noting that the vote cast by a person by name 'Amina' has already been given credit of as against Sl.No.192. Accordingly, the vote cast by Amina pertaining to Sl.No.192, was treated as a tendered vote in terms of Rule 38 of the Kerala Municipality (Conduct of Election) Rules, 1995. It is relevant in this regard to extract Rule 38, which defines a tendered vote. ``` ``` “38.Tendered votes.--(1) If a person ``` ``` C.R.P.NO.241 OF 2022 ``` ## **`- 11 -`** ``` representing himself to be a particular elector applies for a ballot paper after another person has already voted as such elector, he shall on satisfactorily answering such questions relating to his identity as the Presiding Officer may ask, be entitled, subject to the other provisions of this rule, to mark a ballot paper (hereinafter referred to in these rules as a “tendered ballot paper”) in the same manner as any other elector.” ``` ``` 8.It can be seen from the above that the vote is liable to be treated as a tendered vote, only if the following conditions are satisfied (i) a person representing himself to be a particular elector applies for a ballot paper, after another person has already voted as such elector; and (ii) he should satisfactorily answer such questions relating to his identity as asked by the presiding officer. Therefore, the essential pre-requisite to construe a vote as a tendered ``` ``` vote is that, the vote of a particular elector should have been already voted as such elector, in which case, the vote of such elector, who came to vote subsequently is liable to be treated as a tendered vote, subject to the fact that he gives ``` ``` C.R.P.NO.241 OF 2022 ``` ``` - 12 - ``` ``` proper answer as regards his identity to the presiding officer. In the instant facts, it is not a case, where a particular voter as against Sl.No.192 has cast vote, instead of the real voter mentioned against the said serial number. It is also not a case where the real voter, as against Sl.No.196 has been treated as a tendered voter, in view of the fact that another person has marked his vote earlier. Here is a case - as submitted by the learned counsel for the respondent – where, there are two genuine, bonafideand eligible voters as against Sl.Nos.192 and 196. The solitary mistake, which is committed by the first polling officer, is the erroneous marking of the vote tendered by Sl.No.196 as against Sl.No.192. By any stretch of imagination, such a mistake on the part of the polling officer cannot deprive the valuable right of franchise of the person at Sl.No.192, when she came to vote for the election, subsequently. In other words, both the votes are liable to be ``` ``` C.R.P.NO.241 OF 2022 ``` ## **`- 13 -`** ``` counted, wherefore the course suggested in Dr.Wilfred D'Souza's case (supra) is not liable to be followed. At the risk of repetition, this Court may reiterate that this is not a case, where the subsequent vote should have been treated as a tendered vote, in which case only, the course suggested in Dr.Wilfred D'Souza's case (supra) is to be followed. ``` ``` 9.Coming to the instant facts, this Court notice that the tendered vote was liable to be reckoned in terms of Rule 48 of the Kerala Municipality (Conduct of Election) Rules, 1995, since the margin between the returned candidate (as originally declared) and the first respondent herein was only one vote. Accordingly, the tendered vote was considered and the same was found to be in favour of the first respondent/LDF candidate. This would take his total number of votes to 433, at par with the number of votes obtained by the petitioner herein. When the votes ``` ``` C.R.P.NO.241 OF 2022 ``` ## **`- 14 -`** ``` are found to be equal, as obtained by the petitioner and the first respondent herein, there is no quarrel that the course contemplated under Section 180 of the Kerala Municipalities Act, has to be resorted to, which went in favour of the first respondent herein, a fact which is not disputed. Thus, the total number of votes obtained by the first respondent herein became 434, as against 433 votes obtained by the petitioner herein. In the circumstances, this Court cannot find anything illegal or infirm with respect to the judgment of the learned Munsiff, or for that matter, the learned District Judge, which confirmed the said judgment. ``` ``` 10.Coming to the second limb of argument, that the learned Munsiff failed to frame an issue, this Court notice that the very purpose framing issues is to put the parties on notice as to the issues/points which is going to considered by the Court, so as to enable them to ``` ``` C.R.P.NO.241 OF 2022 ``` ``` - 15 - ``` ``` adduce evidence specifically on the point. In the instant case, both parties have adduced evidence, fully understanding the scope of the issue, which was being considered by the court, albeit in the absence of an issue specifically framed to that effect. The issue has been considered at length in the judgment by the learned Munsiff. That apart, when it reached the appellate stage, points are seen framed by the learned District Judge. Now, the grievance that a specific issue in the context of an exclusion, as contemplated in Dr.Wilfred D'Souza's case (supra) has not been framed cannot weigh much, inasmuch as this Court has already found that Dr.Wilfred D'Souza's case ``` ``` (supra) will not apply in terms to the given facts. In the circumstances, the second contention is also repelled. ``` ``` The upshot of the above discussion is that the Civil Revision Petition fails and the same will stand dismissed, confirming the judgments of the ``` ``` C.R.P.NO.241 OF 2022 ``` ``` - 16 - ``` ``` learned Munsiff, as also, the learned District Judge. ``` ``` Sd/- ``` ``` C.JAYACHANDRAN, JUDGE ``` ``` Skk//28.02.2024 ``` ``` C.R.P.NO.241 OF 2022 ``` ``` - 17 - ``` ## **`APPENDIX OF CRP NO.241/2022`** ``` PETITIONER'S ANNEXURES:- ANNEXURE 1CERTIFIED COPY OF THE PETITION IN OP (ELECTION) NO.1/2021 OF MUNSIFF'S COURT, KAYAMKULAM. ANNEXURE 2TRUE COPY OF THE OBJECTION OF THE 1ST RESPONDENT IN OP(ELECTION) NO.1/2021 OF MUNSIFF'S COURT, KAYAMKULAM. ```