P.P. Usha v. N.K. Anitha and Anitha P.K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933** ## **OP(C).No. 2311 of 2011(O)** **----------------------OP(ELECTION).6/2010 of MUNSIF COURT, KUTHUPARAMBA ....................** ## **PETITIONER :** **--------------------** **P.P. USHA, W/O. HARIDASAN, AGED 36 YEARS, 'SREE HARSHAM', THERUR (P.O.), EDAYANNUR, THALASSERY TALUK, KANNUR DISTRICT (VOTER IN WARD NO. 4 SL. NO. 453 (PART I OF KEEZHALLUR GRAMA PANCHAYATH)** **BY ADV. SRI.M.SASINDRAN** **RESPONDENT(S):** **-------------------------** **1. N.K. ANITHA, W/O. PADMANABHAN, AGED 40 YEARS, 'ATHULJITH', THERUR (P.O.) EDAYANNUR, THALASSERY TALUK, PIN-670 595, KANNUR DISTRICT. (VOTER IN WARD NO. 4 SL.NO. 141 (PART I OF KEEZHALLUR GRAMA PANCHAYATH).** **2. ANITHA P.K., D/O. KUMARAN, AGED 39 YEARS, M.K. HOUSE, NALLANI, KANAD, (P.O) EDAYANNUR, THALASSERY TALUK, KANNUR DISTRICT. (VOTER IN WARD NO. 13, SL.NO. 292 (PART II) OF KEEZHALLUR GRAMA PANCHAYATH-670 595.** **R1 BY ADVS. SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **OP(C).No. 2311 of 2011(O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 : COPY OF THE PLAINT IN O.P. (ELECTION) 6 OF 2010 OF THE MUNSIFFS COURT KUTHUPARAMBA.** - **EXT.P2 : COPY OF THE COUNTER STATEMENT FILED BY THE FIRST RESPONDENT, THE PETITIONER HEREIN.** **EXT.P3 : COPY OF THE ORDER DATED 30-6-2011 IN O.P. (ELE) NO. 6 OF 2010 DATED 30-6-2011.** ## **RESPONDENT'S EXHIBITS - NIL** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C) No.2311 of 2011 -------------------------------------Dated this the 23[rd] day of August, 2011.** ## **JUDGMENT** When the margin of victory in the election battle is slender, the more severe will be the legal battle - that appears to be the situation in this case as well. Petitioner was declared elected from Ward III of Keezhallur Grama Panchayat by a margin of one vote against her nearest rival, the 1[st] respondent. Of the 776 votes polled, petitioner got 372 votes as against 371 votes polled by the 1[st] respondent, there being some votes declared by the Returning Officer as invalid as well. The 1[st] respondent challenged election of petitioner on various grounds including that the Returning Officer treated 27 votes as invalid and of them, three votes cast in favour of 1[st] respondent were actually valid and should have been counted in favour of the 1[st] respondent. It is further alleged that the Returning Officer rejected one postal ballot paper (which is not relevant for decision of this Original Petition) which was cast in favour of the 1[st] respondent. In one of the bundles of 50 ballot papers, 51 votes were inserted. In short, what is alleged by the 1[st] respondent is that of the votes treated as invalid by the Returning Officer, three votes were valid and went in favour of the 1[st] respondent and if reckoned along with the votes polled by the 1[st] respondent, she would have been elected. She also contended that immediately after counting was over, she presented an application to the Returning Officer for recounting but there was no response. Thereafter she preferred a complaint to the State **OP(C)No.2311/2011** 2 Election Commission. But that also did not yield result. Hence the election petition. Election petition was opposed by petitioner/elected candidate on various grounds. Learned Munsiff, Kuthuparamba recorded evidence of the parties. 1[st] respondent was examined as PW1. She examined her witnesses as well. The Returning Officer was examined as RW2. Learned Munsiff vide order dated June 30, 2011 directed “recounting” of the votes declared invalid by the Returning Officer. That order is under challenge at the instance of petitioner/elected candidate. 2. Learned counsel for petitioner has contended that learned Munsiff has not adverted to the question whether a recounting of invalid votes was really necessary. It is submitted by learned counsel that though the impugned order runs into several pages, much of the discussion is as regards the respective contentions raised by the parties and the finding is contained only in paragraph 19 of the impugned order where also the discussion concerned 'recounting' but, the factual circumstances which required a recounting have not been adverted to by the learned Munsiff. It is pointed out that a recounting cannot be allowed for the mere asking as that would open the flood gates of litigation in the field of election and virtually convert the court into a counting station. Learned counsel has placed reliance on the decisions in **Bhabhi v. Sheo Govind and others (AIR 1975 SC 2117 – paragraph 5), Narayanan v.** **OP(C)No.2311/2011** 3 **Muhammed (1982 KLT 40 – paragraph 4)** and **I.Rama Rai v. M.Ramanna Rai and others (1990 (2) KLJ 897 – paragraph 17)** . In response, learned Senior Advocate for the 1[st] respondent has contended that though learned Munsiff has used the expression 'recounting' what is meant is only inspection of the invalid votes to ascertain whether allegations made by 1[st] respondent in the election petition and in her evidence as PW1 are correct and whether the three votes treated as invalid by the Returning Officer are actually valid ones and if so, in whose favour it was cast. It is pointed out by the learned Senior Advocate that in a case of this nature where margin of victory is by one vote, in the normal course inspection of invalid votes has to be allowed which alone has been ordered by the learned Munsiff though the phraseology used is 'recounting'. It is pointed out by learned Senior Advocate that the principle regarding secrecy of votes is not available to invalid votes. The principle regarding purity of election should have precedence over secrecy of votes. Reliance is placed on the decisions in **Narayanan v. Muhammed (1982 KLT 40)** and **Kuldip Nayar and others v. Union of India and others ((2006) 7 SCC 1)** . 3. As aforesaid, grievance of the 1[st] respondent which this Court is required to consider so far as the impugned order is concerned is that three valid votes cast in favour of the 1[st] respondent were treated by the Returning Officer **OP(C)No.2311/2011** 4 as invalid and placed in the bundle of invalid votes. Sec.102 of the Kerala Panchayat Raj Act (for short, “the Act”) deals with the grounds for declaring an election to be void and Clause (d)(iii) of the said Section deals with improper reception, refusal or rejection of any vote or the reception of any vote which is void. Rule 47 of the Kerala Panchayat Raj (Conduct of Election) Rules (for short, “the Rules”) deals with scrutiny and rejection of ballot papers and states in which all circumstances the Returning Officer shall reject a ballot paper. Rule 50 of the Rules deals with scrutiny and counting of postal ballot papers and Rule 51 refers to recounting of votes. 4. True that in the order under challenge learned Munsiff has referred to 'recounting' of the votes. Learned Munsiff has also referred in paragraph 18 of the order to the request made by the 1[st] respondent to the Returning Officer (examined as RW2) for recounting of votes immediately after counting was over and the Returning Officer not passing any order thereon following which the 1[st] respondent had approached the State Election Commission which also yielded no result. In the chief affidavit of the 1[st] respondent she has referred to the three votes which according to her were valid, but treated by the Returning Officer as invalid and kept in the bundle of invalid votes. The Returning Officer was examined as RW2. The question is whether on the face of the above allegations in the election petition and the evidence on record learned Munsiff **OP(C)No.2311/2011** 5 was correct in passing the impugned order, if not for 'recounting', but for 'inspection' of the invalid votes of which three, according to 1[st] respondent are valid. 5. Reference can be made to the decisions learned counsel on both sides have relied upon. In **Narayanan v. Muhammed** a learned Judge of this Court stated the circumstances in which there could be a recounting of the votes (obviously coming under Rule 51 of the Rules). In **Bhabhi v. Sheo** **Govind and others** , in paragraph 5 the Apex Court has reiterated the circumstances under which there could be an inspection of the votes. It is held that even in the matter of inspection of votes, the court must be satisfied that the petition for setting aside an election contains statements of material facts on which petitioner relies in support of his case and the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of ballot papers is necessary. It is also held that a mere allegation that petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. **I.Rama Rai v. M.Ramanna Rai and others** relied on by petitioner also referred to recounting of the votes. **OP(C)No.2311/2011** 6 6. As against those decisions learned Senior Advocate has invited my attention to the decision in **Kuldip Nayar and others v. Union of India** where it is held that purity of election must be given precedence over secrecy of the election. Reference could be made to paragraphs 418, 419, 463 and 464. The High Court had declared certain votes as void on the ground of double voting after inspection of the votes. The said order was challenged before the Apex Court on various grounds including that inspection of the votes affected secrecy of voting and the process of election. Referring to that contention the Apex Court held that purity of votes must be given precedence over secrecy of election. 7. It is also brought to my notice from the decision in **Narayanan v.** **Muhammed** that the prayer for recounting should be supported by material facts, oder of inspection of ballot papers cannot be had for the mere asking for satisfying about correctness of the counting unless some doubts are thrown in by positive evidence about such correctness. It is also pointed out that in such circumstances, the fact that difference between the elected and defeated candidates is only one is an important factor which the court has to bear in mind (in the present case also the margin of victory is only one vote). **OP(C)No.2311/2011** 7 8. Though learned counsel for petitioner has placed reliance on paragraph 5 of **Bhabhi v. Sheo Govind and others** it is revealed from the opening paragraph of the said decision that there, it was not a case of inspection of votes categorized as invalid by the Returning Officer but examination of sample ballots from the different bundles. That I think must bear a distinction with a request to inspect such votes which are described as invalid votes, having regard to the facts and circumstances. 9. The 1[st] respondent in her evidence as PW1 stated the circumstances which required her to file a petition for recounting of the votes. She also referred to the Returning Officer (RW2) turning a deaf ear to that request. Learned Munsiff prima facie found that there is worth in the contention of the 1[st] respondent. True, that learned Munsiff has referred to 'recounting' of votes and it ought have been a direction for inspection of the invalid votes to find whether contention of 1[st] respondent is correct or not. Counting of votes arises only when the learned Munsiff is satisfied after inspection of the invalid votes and based on the evidence found that there is worth in the contention of 1[st] respondent that any of the votes cast in favour of the 1[st] respondent was treated by the Returning Officer as invalid and included in the bundle of invalid votes wrongly. Such votes if found to be valid and cast in favour of the 1[st] respondent are to be counted in her favour. **OP(C)No.2311/2011** 8 10. True that learned Munsiff has not in so many words stated about the three votes being categorized as invalid votes and treated as such by the Returning Officer. But I am concerned with the question whether Ext.P3, order requires interference. In deciding that, I am justified in referring to the circumstances brought out in evidence. In that view of the matter I am not inclined to think that the order of learned Munsiff is illegal or suffers from any infirmity so that interference is required. But I make it clear that what is meant by the learned Munsiff in Ext.P3, order is inspection of bundle of invalid votes to ascertain whether case of the 1[st] respondent regarding rejection of votes cast in her favour as invalid is correct or not, and based on the finding of such inspection and the evidence on record learned Munsiff has to pass final orders in the election petition. With the above direction this Original Petition is dismissed. I.A.No.11954 of 2011 will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**