Pankajakshan v. Murugadas

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 MFA.No. 39 of 2008() -------------------OPELE.173/2005 of II ADDL. DISTRICT COURT, PALAKKAD .................... APPELLANT(S): PETITIONER ------------------------ PANKJAKSHAN, AGD 36 YEARS, S/O.RAMAN, MELEVEEDU HOUSE, KARI KULAM VILAYODI PO, PERUMATTY, PALAKKAD DISTRICT BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): --------------- MURUGADAS, AGED 30 YEARS S/O. VISWANATHAN, CHERINGAL HOUSE NANIYODE PO, PATTANCHERRY VILLAGE CHITTUR TALUK. ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.ALAN PAPALI SRI.SOJAN MICHEAL SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S. SRI.P.K.VIJAYAMOHANAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS.C.KURIAKOSE & J. -----------------------M.F.A.No.39 of 2008 ------------------------** Dated this the 3[rd] day of October, 2008 **JUDGMENT** The defeated candidate, in an election to the District Panchayat of Palakkad District from Vandithavalam Division, is aggrieved by the order of the Election Tribunal dismissing the election petition which he filed as E.P. No.173/2005 and hence this first appeal under Section 113 of the Panchayat Raj Act. The respondent, who was respondent before the Election Tribunal, is the successful candidate. Parties will be referred to as they were before the Election Tribunal. 2. The election petition was filed under Sections 87, 88, 89, 91, 92, 100, 102 and 103 of the Kerala Panchayat Raj Act, 1994 and the prayer in the petition was for recounting of the votes and for declaration of the petitioner as the returning candidate. The case of the petitioner, as averred in the petition, was that he contested in the election as official candidate of the Indian National Congress (I) with the symbol 'Hand'. The respondent contested the election as an official candidate of M.F.A.No.39/2008 2 Janatha Dal (S) with the symbol of that party. The counting of the votes was held for grama panchayat, block panchayat and District Panchayat at Chittur Government College on 27/9/2005. For the purpose of counting, the State Election Commission provided 25 result sheets. In 12 Vandithavalam Division to which the petitioner contested, the total number of voters was 69281. Out of them 46,782 exercised their franchise. At the counting, 1221 votes were declared as invalid votes. Out of this, certain votes cast properly and without any ambiguity were also kept aside as invalid by the counting officers. Whenever, objections were raised, it was declared that those votes will be again verified and counted for, if found valid. However, even after completing the counting, those votes were not rechecked. As per the votes recorded by the counting agencies the petitioner secured 22810 votes while the respondent secured 22751 votes. But the returning officer declared the respondent as duly elected. It is contended that for the purpose of declaration of the result, number of votes secured by the respondent is taken as 22818 as against 22743 by the petitioner. Declaration was made at 2.30 A.M. on 28/9/2005. Noticing the apparent mistake, the M.F.A.No.39/2008 3 petitioner instantaneously gave a complaint to the Returning Officer, stating that there is apparent mistake in the addition and tabulation of votes apart from other illegalities and improprieties in the counting. The Returning Officer rejected the petitioner's request for recounting. On the same day itself the petitioner filed application before the District Collector and the Chief Election Commissioner, requesting for stoppage of declaration of result and recounting of votes. Thereafter, the petitioner preferred another application before the Election Commission stating the discrepancies in the counting and requesting for verification of the correctness of the election. It is highlighted that there is apparent mistake in the tabulation and addition of the votes secured by the petitioner from booth No.2 Ward No.13, Pattikulam of Perumatty Grama Panchayat. From this booth, the petitioner secured 279 votes while the respondent secured 212 votes. While writing the votes as secured by the candidates, the votes secured by the petitioner has been included as the vote secured by the respondent relating to booth No.2 of Ward No.13 of Pattikulam. So also the votes secured by the respondent from the said booth has been included as the votes secured by the M.F.A.No.39/2008 4 petitioner. Thus the difference of 67 votes arose. 67 votes were deducted from the account of the petitioner and added to the account of the respondent. Had it not been so, the petitioner would have secured 22810 as against 22751 by the respondent. This is clear from the pattern of votes secured by the other candidates in the Grama Panchayat and block Panchayat of Booth No.2 of Ward No.13 of Perumatty Grama Panchayat. Hence the petitioner prayed for recounting of the votes held in Booth No. 2 of Ward No.13 of Perumatty Grama Panchayat and for declaration that the petitioner is duly elected candidate to D9 District Panchayat from 12 Vandithavalam Division in Palakkad District. 3. Serious counter was filed by the respondent contending that the petition does not maintainable and the the pleadings raised in the petition are without bona fides or truth. The petitioner's claim that he secured 22810 as against 22751 secured by the respondent is strongly denied. It is stated that the petitioner claim that he preferred application before the District Collector and Chief Election Commissioner for stoppage of declaration of result is false. It is stated that the petitioner's M.F.A.No.39/2008 5 contention that there was mistake in the tabulation and addition of votes secured by him from booth No. 2 in Ward No.13 of Pattikulam and Perumatty Grama Panchayat is wrong. Equally wrong is the claim that the petitioner secured 279 and the respondent secured 212 votes from the said booth. The petitioner's contention that a mistake crept in while adding the votes in booth No.2 in Ward 13 of Perumatty Grama Panchayat was stoutly denied. It is then contended that the petitioner has not complied with the mandatory provisions of Kerala Panchayat Raj Act in filing the petition. It is also contended that there is no case made out for declaring the petitioner as the returned candidate and the petitioner has not made any objection in writing to the returning officer regarding the recounting of votes. Subsequently, the petitioner has invoked jurisdiction of the Chief Election Commissioner for recounting of the votes. For that reason also, the present election petition is not maintainable. 4. At trial, witnesses PWs 1 to 6 were examined and Exts.A1 to A5 were marked on the side of the petitioner and no evidence was adduced on the side of the respondent. Further, M.F.A.No.39/2008 6 Ext.X1 to 7 were also marked. The learned Judge formulated the following points to be considered in the appeal; 1. Whether the recounting of polled in booth No.2, Ward No.13 of Pattikilam of Perumatty Grama Panchayat in the election to D9 District Panchayat is necessary ? 2. Whether the petitioner is entitled to get an order for declaration of the election of respondent to D9, District Panchayat from Vandithavalam Division as invalid and illegal and to set aside the same after recounting ? 3. Whether the petitioner is entitled to be declared duly elected to D9, District Panchayat from 12 Vandithavalam Division after recounting ? 4. What order as to costs ? 5. The learned District Judge considered the Points Nos. 1 to 3 together. Even though several contentions were raised at the time of hearing, the counsel for the petitioner confined his M.F.A.No.39/2008 7 dispute regarding the votes in Booth No.2 in Ward 13 of Perumatty Grama Panchayat. PW4 Returning Officer gave evidence to the effect that Ext.X3 is the result sheet of the candidates. He stated that votes secured by the candidates belonging to the same political group contesting in election to Grama Panchayat, District Panchayat, Block Panchayat will vary. The learned District Judge found that this variation was natural and that the evidence of PW4 will not be of any assistance to the petitioner. PW 5 is the Returning Officer of Perumatty Grama Panchayat election. Ext.X4 is the result sheet signed by PW5 in the aforesaid election relating to Perumatty Grama Panchayat from Ward No.13. He does not have information regarding the political alliance of the various candidates and combination between the various political parties inter se. The learned District Judge found that the votes secured by the candidates shown in Ext.X4 result sheet is not comparable with the election to which the petitioner and the respondent contested. PW-6 was the Returning Officer for the Block Panchayat election. Exts.X5 and X6 are the nomination forms of the two candidates, who contested to that election. He also testified that even when M.F.A.No.39/2008 8 candidates are contesting to Block Panchayat and Grama Panchayat and District Panchayat with the support of the very same political group and the voters are casting their votes in the very same booth, number of votes will always vary depending upon the personality cult, influence and other relevant factors. The learned Judge correctly found that the evidence of this witness will not be of any assistance to the petitioner. Ext.X1 was the result sheet of the election and the same was marked with the consent of the counsel. Ext.X1 was not relied on by the learned Judge for the reason that the same does not pertain to booth No.2 in Ward No.13 of Perumatty Panchayat, to which the petitioner confined his submissions at the time of argument. PW 3 is the assistant Returning Officer, who is the signatory to Exts.X1 and X2. Exts.X1 and X2 do not relate to the votes secured by the petitioner or the respondent and hence they were found to be irrelevant to decide the issue. Ext-X2(e) to (f) are the result sheets relating to the votes secured by the petitioner and the respondent from Perumatty Panchayat. PW-3 is the signatory to Exts.X2(e) to (f). PW-3 testified that according to Ext.X2(f) the petitioner secured 212 votes and the respondent 9 M.F.A.No.39/2008 secured 279 votes. It is testified further that the result sheets were given to the agents of the candidate for perusal and at that time the agents have not raised any objection regarding the entries in the result sheets. He stated that if any complaint or request for recounting had been made then and there, the same would have been acknowledged by him and he would have contacted the returning officer for taking further steps. He stated further that the entries in Ext.X2 series were made by him after verification and it is thereafter he put the signature. The result sheet were also given to the Returning Officer. According to the learned District Judge, despite cross examination, the evidence of this witness corroborated that he had made all entries with due care and caution and that those entires were verified and given to the agents of the candidates for verification and it is only thereafter that he signed the same. The learned Judge noticed that this witness was summoned by the petitioner, however, was not sought to be declared hostile or cross examined by the petitioner. The learned Judge did not become inclined to accept the case of the petitioner that his counting agent and he promptly raised objection at the time of M.F.A.No.39/2008 10 counting itself. Ext.A1 is the copy of the complaint dated 28/9/2005. Ext.A2 is copy of the petition filed by the petitioner before the Election Commissioner, Thiruvananthapuram. Though Ext.A2 is dated 1/10/2005, the same was seen verified and declared only on 25/10/2005 which was one month after the election. Ext.A2, according to the learned Judge, affects genuineness of Ext.A1. The learned Judge noticed that there was no evidence to show that Ext.A1 was sent by Registered Post or ordinary post or directly filed before the Election Commission. Ext.A3, being an unauthenticated Photostat copy of the result sheet, was rejected by the District Judge as unreliable document. Ext.A4 is a copy of the order passed by the Returning Officer, District Panchayat and District Collector, Palakkad. It was noticed by the District Judge that the contention of the petitioner before the District Collector was that counting of votes was taken up simultaneously at District/Block/Grama Panchayat level and because of this counting agents were unable to put attention to the counting tables. The further contention raised before the District Collector was that some other votes held in favour of the UDF candidates were attached to the bundle of LDF candidates. M.F.A.No.39/2008 11 The learned District Judge noticed that the order passed by the District Collector is a well reasoned order and it was correctly found by the District Collector that there was no evidence to substantiate the allegation of the petitioner that some of the UDF votes were attached to the bundles of the LDF votes. Variation in the stand taken by the petitioner before the court in the election petition and before the District Collector at the time of hearing was noted by the District Judge. It was noticed that the complaint raised in the election petition was not raised in Ext.A4 at the earliest point of time. Ext.A5 is the intimation received from the State Election Commission to the petitioner stating that the dispute is outside the purview of the State Election Commission. The District Judge, however, highlights that copy of the complaint in respect of which Ext.P5 was received is not produced by the petitioner. But, the learned District Judge would rightly discern from Ext.A5 itself that the complaint was regarding the counting of votes. It is confined to wrong entry in the result sheet relating to booth No. 2 of ward 13 of Pattikulam. Thus, the District Judge held that the petitioner does not have a definite and consistent case. The learned M.F.A.No.39/2008 12 District Judge has analised the evidence given by PW-2, counting agent of the petitioner. It is highlighted that specific question was put to PW-2 as to the dispute regarding the entries in the tabular form, he answered that he has not signed it. PW-2 admitted that entires in the tabulation form could be seen from the candidate as well as the agent and that they have got every right to verify the same. It was also admitted that they did not make any request for verification of the same. In the light of PW-2's evidence, the learned District Judge observed that the petitioner's contention that mistake had crept in while preparing the result sheet is not correct. The learned District Judge has made analysis of the evidence adduced by the PW1, the petitioner. It was noticed that the petitioner had admitted that he has not filed any complaint to the Returning Officer at the counting station at Chittur College regarding the mistaken entries in the result sheet. PW-1's version that the allegation is raised on the basis of a comparison of the entries noted by the counting agent and the entires prepared by himself was rejected by the District Judge as baseless and self serving. It was seen that the petitioner could obtain details of the votes secured from M.F.A.No.39/2008 13 the District Collector only in the evening on 30.9.2005 and it is only thereafter that he will be able to know the alleged mistake. Absence of definite pleadings and evidence to that effect in the plea, the variation between the stand taken by the petitioner at different stages are all highlighted by the District Judge. The learned District Judge declined the request of the petitioner for invocation of Section 115(2) of the Panchayat Raj Act and ultimately dismissed the Election Petition directing the parties to suffer costs. 6. I have heard submissions of Sri. George Poonthottam, the learned Counsel for the petitioner, when this first appeal came up for consideration. It was submitted by Sri.George Poonthottam, learned counsel for the petitioner, that the dispute falls within a very narrow campus and the same can be resolved by perusing the tabulation sheet in respect of Booth No.2 of Ward No.13 of Perumatty Grama Panchayat. Considering that submission, I passed the following orders on 2/7/2008. **==> picture [270 x 13] intentionally omitted <==** Thiruvanathapuram is directed to make M.F.A.No.39/2008 14 available the tabulation sheet in respect of booth No.2 in Ward No. 13 of Perumatty Grama Panchayat in respect of Division No.12 Vandithavalam (Palakkad District Panchayat). Handover a copy of this order to Sri.Murali Purushothaman, Standing Counsel for the Election Commission who will ensure compliance of the above order. Tabulation sheet called for will be made available in a sealed cover. Post on 18/7/2008.” 7. The Standing Counsel for the State Election Commission Sri. Murali Purushothaman, pursuant to that order produced tabulation sheet in a sealed cover on 18/7/2008. I ordered that the same will be kept under safe custody as part of the records. Thereafter, on 25/7/2008 , after hearing both sides and Sri.Murali Purushothaman, learned Standing Counsel for the Election Commission I passed the following order; “Mr.Murali Purushothaman, the learned Standing Counsel for the Election M.F.A.No.39/2008 15 Common is directed to file a statement regarding the actual number of votes polled by the appellant and the respondent in booth No.2 of Ward No.13 of perumatty Panchayat, i.e. the election in dispute. This will be done after verifying the ballot papers. In order to enable the Standing Counsel to file the statement as directed above, the District election Officer will collect the ballot papers from the concerned treasury. Post on 13/8/2008. Handover a copy of this order to the Standing Counsel for the Election Commission. 8. Thereafter, I.A. No.1982/2008 was filed by the respondent seeking recall of the order dated 25/7/2008 and considering that I.A. I dispose of the I.A. issuing the following order '; “Heard Sri.M.K.Damodaran and Sri.George Poonthottam the learned counsel M.F.A.No.39/2008 16 for the appellant. Having regard to the submissions addressed, this I.A. is disposed of in the following terms; The order dated 25/7/2008 will be kept in abeyance till such time as the MFA is finally disposed of. Post on 11/8/2008 at 1.45”. 9. Very extensive submissions were addressed before by Sri.George Poonthottam, learned counsel for the appellant, who drew my attention to Annexure A1, A2, , A5, Ext.X7, X2(f) and to the oral evidence adduced in the case particularly evidence of PWs2 and PW1. Sri.M.K.Damodaran, learned Senior counsel for the respondent would meet all the submissions of Sri.Poonthottam. My attention was drawn by Sri.Damodaran to Rules 48,49,51 and 54 of the Kerala Panchayat Raj (Conduct of Election Rules) and to the statutory Forms 24,24(a) and 25. Sri.Damodaran also draw my attention to certain portions of the evidence in the case. Strong reliance was placed by Sri.M.K.Damodaran on the judgment of the Supreme Court in M.F.A.No.39/2008 17 **Ram Sewak Yadav. Hussain Kamil Kidwai and others** ( AIR 1964 Supreme Court 1249), Tanaji Ramachandra Nimhan v. Swati Vinayak Nimhan & Ors.( AIR 2006 S.C.1218), Judgment of Sri.Padmanabhan J in **Balaram v. Aravindakshan (1** 988 (1) KLT 615), judgment of a Division Bench of Court in **Dominic v. Gopalakrishnan** (1993 (2) KLT 88) to the Judgment of the Supreme Court in **P.K.K.Shamsudeen v.K.A.M.Mappillai Mohindeen and others** (AIR 1989 Supreme Court 640). To the judgment of the Supreme Court in **M.R.Gopalakrishnan v. Thachady Prabhakaran and Others** (1995 Supp(2) Supreme Court Cases 101) and also to the judgment of the Supreme Court in **Bhabhi v. Sheo Govind** ( AIR 1975 SC 2117). 10. Sri.George Poothottam, in reply would rely on the observations of the Supreme Court in paragraphs 67 and 8 of the judgment reported in 1964 Supreme Court 1249(supra). The entire lower court records are available and I have scanned them. 8. Having considered the rival submissions addressed before me by Sri.George Poonthottam, learned counsel for the petitioner and the learned Senior counsel Sri.Damodaran in the M.F.A.No.39/2008 18 light of the evidence available in the case and the ratio emerging from the various decisions cited before me by Sri.Damadaran which throw light on the aspects to be kept in mind by Election Tribunal while trying election petitions and while considering requests for recounting, I am of the view that there is no warrant for interfering with the Judgment of the Election Tribunal. As rightly noticed by the learned District Judge, the appellant petitioner did not have a consistent case and at any rate the evidence adduced in this case falls short of holding that mistake as alleged by him crept into the tabulation sheet while recording the votes secured by the petitioner and the respondent in Booth No. 2. Recounting is to be allowed only when the same is absolutely necessary and warranted by the evidence oral, documentary and circumstantial. The evidence in this case will not justify the recounting asked for and I do not find any reason not to accept the submission of Sri.Murali Purushothaman, learned Standing counsel for the Election Commission on the basis of the instructions from the custodian of the ballot papers that even if recount is ordered no useful purpose will be served from the point of the petitioner. M.F.A.No.39/2008 19 The result is that the M.F.A will stand dismissed, but in the circumstances, without any order as to costs. **PIUS.C.KURIAKOSE,JUDGE** dpk