Padmakumari v. N. Venugopal and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944** ## **OP(C) NO. 503 OF 2022** **AGAINST THE ORDER IN IA 27/2022 IN OP(ELECTION) 1/2021 OF** ## **PRINCIPAL MUNSIFF'S COURT, ERNAKULAM** ## **PETITIONER/PETITIONER/1ST RESPONDENT:** PADMAKUMARI, AGED 45 YEARS, WIFE OF K.S.GIRISH, QUARTERS NO.E-3-46, RNAS AREA, WILLINGTON ISLAND, KOCHI - 680 003. BY ADVS. K.RAMAKUMAR (SR.) T.RAMPRASAD UNNI S.M.PRASANTH G.RENJITH R.S.ASWINI SANKAR T.H.ARAVIND ## **RESPONDENTS/RESPONDENTS/PETITIONER & RESPONDENTS 2 TO 4:** 1 N.VENUGOPAL, AGED 70 YEARS, SON OF NEELAKANDA PILLAI, SREELAKAM, PANDARACHIRA, 1ST CROSS ROAD, KADAVANTHRA SOUTH, PIN - 682 020. 2 C.D.NANDAKUMAR, AGE NOT KNOWN, SON OF NOT KNOWN TO THE PETITIONER, HOUSE NO.21/1771, VRINDAVANAM, VELIPPARAMBIL ROAD, PULLARDESOM, PALLURUTHY, PIN - 682 006. 3 JOSEPHINE JULIET RAJU, AGE NOT KNOWN, D/O.NOT KNOWN TO THE PETITIONER, POLLAYIL HOUSE, HOUSE NO.CC 1/1922 A, NJALIPARAMBU, PIN - 682 001. 4 STANLEY POULOSE, AGE NOT KNOWN, SON OF NOT KNOWN TO THE PETITIONER, KUZHIKKADAN HOUSE, HOUSE NO.1/1442, FORT KOCHI - 682 001. BY ADVS. T K AJITH KUMAR (B/O) N.SATHEESH NAVANEETH D.PAI CHACKOCHEN VITHAYATHIL JINISHLAL S.B. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) No.503 of 2022 2 ## K.BABU, J . -------------------------------------- ## O.P(C) No.503 of 2022 --------------------------------------- Dated this the 5[th] day of April, 2022 ## JUDGMENT The prayers in this Original Petition filed under Article 227 of the Constitution of India are as follows: - “(i) To call for the records leading upto Ext.P3 and set it aside by the issuance of an order or direction; - (ii) To issue a direction to frame proper issues with reference to the pleadings in O.P.(Ele) No.1 of 2021 on the file of the Munsiff's Court, Ernakulam. - (iii) To issue such other orders or directions as this Hon'ble Court may deem, fit and proper in the circumstances of the case.” 2. Heard Sri.K.Ramakumar, the learned Senior Counsel appearing for the petitioner, Sri.N.N.Sugunapalan, the learned Senior Counsel instructed by Sri.T.K.Ajithkumar, the learned counsel appearing for respondent No.1, Sri.N.Satheesh, the learned counsel appearing for respondent No.2, Sri.Chackochen Vithayathil, the learned counsel appearing for respondent No.3 and Sri.S.B.Jinishlal, the learned counsel appearing for respondent No.4. O.P(C) No.503 of 2022 3 3. The petitioner is the returned candidate in the general election held on 10.12.2020 for the Kochi Municipal Corporation from Division No.29/Willington Island North. The respondents are the other candidates contested in the election. 4. Respondent No.1 filed O.P (Election) No.1/2021, challenging the election of the petitioner before the Principal Munsiff's Court, Ernakulam. Respondent No.1 alleged that one illegal vote, which was cast by the Presiding Officer, decided the outcome of the election. According to him, the improper reception of one vote in favour of the petitioner has materially affected the result of the election. It is pleaded that the illegal action of the Presiding Officer in violation of the provisions of the Kerala Municipality Act, 1994 (for short 'the Act') and the relevant Rules has caused prejudice to respondent No.1. 5. The petitioner resisted the Election Petition, contending that there is no improper acceptance of vote as alleged. According to the petitioner, the Presiding Officer has not committed any illegality. O.P(C) No.503 of 2022 4 6. The allegations that form the foundation of the Election Petition are contained in paragraphs 8 and 10 of the petition, which ## are extracted below: - “8. The above shown table clearly indicates that the one illegal vote which was cast by the presiding officer became the deciding vote, prejudicially affecting the results of the outcome of the vote against the petitioner and defeating the electoral process. Thus the result of the election in so far it concerns with the returned candidate, has been materially affected by the improper reception of a vote in favour of the 1[st] respondent which is void and by the non compliance with the provisions of the Act or Rules or orders made there under which are sufficient grounds under section 178(d)(iii) and 178(d)(iv) of the Kerala Municipality Act, 1994 for declaring the election of the returned candidate as void. If the illegally accepted one vote is deleted from the account of the returned candidate, then there will be equal votes for the petitioner and the respondent returned candidate. If the missing vote was found in favour of the petitioner, the petitioner will be the declared returned candidate. 9. xx xx xx 10. Being aggrieved by the illegal and improper acceptance of a vote in favour of the 1[st] respondent and the illegal actions of the presiding officer in the non-compliance with the provisions of the Act or Rules or orders made there under, the petitioner is left without any remedy other than to approach this Hon'ble Court to get the election held on 10.10.2020 in Division No.29 of the Kochi Municipal Corporation as void.” 7. The crux of the allegations in the Election Petition is that if the illegal vote cast by the Presiding Officer had been deleted from the account of the petitioner, respondent No.1 would have been O.P(C) No.503 of 2022 5 declared as the returned candidate. So the foundation of the allegation is that there is improper acceptance of one vote in favour of the petitioner, which was facilitated through the illegal actions of the Presiding Officer in violation of the provisions of the Act and Rules. 8. These allegations are refuted by the petitioner contending that no illegal vote was accepted in favour of her and the Presiding Officer has not violated the provisions of the Act and Rules. 9. The Trial Court initially framed seven issues. Subsequently, the petitioner filed I.A.No.23/2021, praying for recasting the issues. Accordingly, the Court below recast the issues as follows: “(i) Whether there was a difference of one vote in EVM and total polled votes? (ii) Whether the said one vote was validly cast by voter? (iii) If so whether the deficit of one vote in the EVM had happened due to technical glitches or some other reason? (iv) Whether there was consensus among the candidates including the petitioner to enable the polling officer by lot to cast one vote in favour of the candidate on whom the lot falls? (v) Whether the said act of the presiding officer is legal and statutorily permitted. (vi) Whether one vote failed to be recorded in the EVM if recorded would have enabled the petitioner to win O.P(C) No.503 of 2022 6 the election? - (vii) If so whether those matters have materially affected the result of the election of the 1[st] respondent (returned candidate)? - (viii) Is the petitioner entitled to get a declaration that the election of the 1[st] respondent as the returned candidate of Division No.29 of Willington Island North of Kochi Corporation void? - (ix) If so whether the petitioner is to be declared as the returned candidate of Division No.29 of Willington Island North of Kochi Corporation? - (x) What is order as to costs?” ## 10. The Court below proceeded with the trial. During the course of trial, the petitioner filed I.A.No.27/2022 and suggested to frame the following issues also: - “(a) Whether the parameters of Election Petition are in compliance with the mandatory provisions of the Kerala Municipality Act, 1994 and if not whether the petition is liable to be rejected. - (b) Whether the allegations of corrupt practices properly pleaded in accordance with provisions contained in the Kerala Municipality Act, 1994.” ## 11. The Court below rejected the request of the petitioner as per order dated 08.03.2022 in I.A.No.27/2022 (Ext. P3). This order is under challenge in this original petition. ## 12. The learned Senior Counsel appearing for the petitioner contended that the issue as to improper reception of a void vote had not been framed, which is essential for the adjudication of the O.P(C) No.503 of 2022 7 lis. The learned Senior Counsel relying on Makhan Lal Bangal v. Manas Bhunia and others (AIR 2001 SC 490), contended that each material proposition affirmed by one party and denied by the other should form the subject of a distinct issue and an obligation is cast on the Court to meticulously read the petition and the counter, if any, to frame necessary issues. 13. The learned Senior Counsel Sri.N.N.Sugunapalan appearing for respondent No.1 contended that the issues already framed cover the question as to the improper reception of void vote. The learned Senior Counsel further contended that as respondent No.1/petitioner has not alleged corrupt practices, the issue as to “whether the allegation of corrupt practices properly pleaded in accordance with the provisions contained in the Kerala Municipality Act, 1994” need not be framed. The learned counsel further contended that the other issue as to “whether the parameters of the election petition are in compliance with the mandatory provisions of the Kerala Municipality Act, 1994” sought to be framed was considered by this Court in O.P.(C)No.2400/2021, O.P(C) No.503 of 2022 8 which ended in finality with the dismissal of SLP.No.1713/2022 by the Apex Court. 14. The Election Petition is based on the allegation that a void vote was accepted by the Presiding Officer. As per Sec.178(2)(d) (iii) of the Act the improper reception of a vote or reception of any void vote is a ground for declaring an election to be void. Respondent No.1 relies on this ground to challenge the election of the petitioner based on the allegations extracted above. 15. The issues (ii), (iii), (iv) and (v) framed by the Trial Court cover the material proposition affirmed by respondent No.1 and denied by the petitioner, that is, the question as to “whether there is improper reception of vote or reception of any void vote”. This Court is of the view that no additional issue need be framed for the adjudication of the lis. 16. Both sides have no case that the Election Petition contains any allegation of corrupt practices as defined in Sec.144 of the Act. So, there is no need to frame any issue as to whether the allegations of corrupt practices have been properly pleaded in O.P(C) No.503 of 2022 9 accordance with the provisions contained in the Kerala Municipality Act, 1994. 17. Now, what is left is the issue as to whether the parameters of the Election Petition are in compliance with the mandatory provisions of the Kerala Municipality Act, 1994 and if not whether the petition is liable to be rejected. The issue sought to be framed, which is more general in nature, relates to the maintainability of the Election Petition. 18. The petitioner had filed I.A.No.8/2021 challenging the maintainability of the Election Petition on the following grounds: “(i) non-compliance of Section 165(2) of the Kerala Municipality Act, 1994 (“the Act” for short); that is, every page of the copy of the election petition served on the petitioner not having been attested by the election petitioner under his own signature. (ii) violation of Section 167(1)(c), the election petition having not been verified in the manner laid down in the Code of Civil Procedure. (iii) violation of the proviso to Section 167(1)(c), the election petition not being accompanied by an affidavit in the prescribed form in support of the allegation of corrupt practice. (iv) photocopy of the affidavit filed along with the election petition, petitioner has signed only in the second page. (v) copy of the election petition served on the petitioner is not an exact copy of the original. (vi) Copies of the documents produced along with the election petition are not served on the petitioner.” O.P(C) No.503 of 2022 10 19. The Court below dismissed I.A.No.8/2021 holding that the Election Petition is maintainable. The petitioner had challenged the order in I.A.No.8/2021 in O.P(C).No.2400/2021. This Court confirmed the findings of the Trial Court that the Election Petition is maintainable as per order dated 13.01.2022 in O.P(C).No.2400/2021. The petitioner challenged the judgment and order dated 13.01.2022 in O.P(C).No.2400/2021 before the Apex Court in SLP.No1713/2022 which ended in dismissal. 20. Therefore, the issue as to whether the parameters of the Election Petition are in compliance with the mandatory provisions of the Act does not survive for consideration. 21. The petitioner has urged this Court to interfere with Ext.P3 order, by which the Court below refused to frame additional issues, invoking Article 227 of the Constitution of India. 22. The power under Article 227 of the Constitution would be restricted to interference in cases of grave dereliction of duty or flagrant violation of law and would be exercised most sparingly in cases where grave injustice would be done unless the High Court O.P(C) No.503 of 2022 11 interferes. 23. This Court has meticulously gone through the impugned order. The order does not suffer from any illegality or irregularity. The Original Petition lacks merits. The Original Petition is, therefore, dismissed. The parties are directed to bear their respective costs. Sd/K.BABU, JUDGE KAS O.P(C) No.503 of 2022 12 ## **APPENDIX OF OP(C) 503/2022** |PETITIONER|EXHIBITS| |---|---| |Exhibit P1|TRUE COPY OF PETITION DT. 22/02/2022 AS| ||I.A.NO.27 OF 2022 IN O.P.(ELECTION)| ||NO.1 OF 2021 ON THE FILE OF THE| ||PRINCIPAL MUNSIFF'S COURT, ERNAKULAM| ||FILED BY THE PETITIONER HEREIN.| |Exhibit P2|TRUE COPY OF COUNTER AFFIDAVIT DT.| ||23/02/2022 IN I.A.NO.27 OF 2022 IN O.P.| ||(ELE) NO.1 OF 2021 ON THE FILE OF THE| ||PRINCIPAL MUNSIFF'S COURT, ERNAKULAM BY| ||THE FIRST RESPONDENT HEREIN.| |Exhibit P3|TRUE COPY OF ORDER DT. 08/03/2022 IN| ||I.A.NO.27 OF 2022 IN O.P.(ELECTION)| ||NO.1 OF 2021 ON THE FILE OF THE| ||PRINCIPAL MUNSIFF'S COURT, ERNAKULAM.|