Rajeesh @ Rajesh v. Gopi Kandhan and Gopi Chirattan

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. S. Satheesachandran
Judgment Date: 2012-02-02
Court Decision / Holding: Ext.P3 order set aside; the learned Munsiff is directed to consider afresh whether any recounting or scrutiny of the ballot papers has to be ordered, taking note of the observations above, and in accordance with law.
Final Disposition: Original petition disposed of as above; Ext.P3 order set aside; matter to be reconsidered by Munsiff in light of legal principles.

Parties to the Case

Appellants / Petitioners

Rajeesh @ Rajesh

Respondents

Gopi Kandhan
Gopi Chirattan

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T.A. Shaji
• Namitha Jyothish

Counsels for Respondents

• Smt. O.H. Nazeeba

Case Synopsis & Summary

Rajeesh @ Rajesh, petitioner, challenged the election of the ward councillor from Ward II of Kuzhupilli Grama Panchayat in North Paravur. The election petition, filed as Election OP No. 9/2010 before the Munsiff Court, North Paravur, led to the petitioner being declared elected by a narrow margin of 12 votes. During counting, the Returning Officer set aside 42 ballots on suspicion of their validity; these ballots were later examined, and 31 of them were declared invalid, with the remainder accepted. The petitioner claimed that the Returning Officer did not properly scrutinise the ballots set apart during counting and alleged arbitrary rejection of certain votes to favour the returned candidate (Respondent 1). He argued that proper scrutiny would have increased his margin by about 20 votes, potentially altering the outcome and justifying setting aside the election. The Munsiff issued Ext. P3, an order reopening the case to scrutinise the ballots already produced. The petitioner challenged Ext. P3 under Article 227 of the Constitution, contending that secrecy of ballots is sacrosanct and that recounting should be ordered only if there is a strong case supported by pleadings and evidence. The High Court, citing Indulekha v. Preethakumari, held that scrutiny cannot be ordered merely on request and without substantial material. Ext. P3 was set aside, and the Munsiff was directed to consider afresh whether recounting or scrutiny is warranted, in accordance with law, disposing of the petition.

Provisions of Law Cited

Article 227 of the Constitution of India

Legal Doctrines & Maxims

Secrecy of ballots is sacrosanct
Recounting or scrutiny of ballot papers is permissible only when a case is made out by pleadings and evidence
Supervisory jurisdiction under Article 227 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contends that the Returning Officer did not properly scrutinise the ballots set apart during counting; such scrutiny and recounting would reveal the true margin and could alter the outcome; seeks proper scrutiny under law. The case emphasizes that scrutiny should not be ordered merely on the basis of a request, and that secrecy of ballots must be preserved.

Contentions of Respondents

Respondents contest recount; rely on secrecy of ballots; no material pleadings in support of recount; oppose prayer for further scrutiny absent a strong case.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Indulekha v. Preethakumari	2010(2) ILR 468	Mentioned Only	Cited to support principle that scrutiny and recounting require a strong case with material particulars; not to be ordered on mere request.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE S.S. SATHEESACHANDRAN** **THURSDAY, THE 2ND DAY OF FEBRUARY 2012/13TH MAGHA 1933** ## **O.P.(C).No. 2577 of 2011 (O)** **(ELECTION O.P. NO: 9/2010 OF THE MUNSIFF COURT, NORTH PARAVUR)** **PETITIONER: ----------** **RAJEESH @ RAJESH, AGED 47, S/O. NARAYANAN, PATHIYAPARAMBIL HOUSE, AYYAMPILLY MURI, KUZHUPPILLY VILLAGE.** **BY ADVS. SRI. T.A. SHAJI SMT. NAMITHA JYOTHISH** **RESPONDENTS:** **-----------** **1. GOPI KANDHAN, AGED 44, S/O. BHARATHAN, THOTTUNGAL HOUSE, AYYAMPILLY MURI, KUZHUPILLY VILLAGE, AYYAMPILLY P.O., ALUVA. PIN - 682 501.** **2. GOPI CHIRATTAN, AGED 56, S/O. KANDAN KORAN, CHIRATTUPURAKKAL, AYYAMPILLY MURI, KUZHUPILLY VILLAGE, AYYAMPILLY P.O., ALUVA. PIN - 682 501.** **R1 BY SMT. O.H. NAZEEBA** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20-01-2012, THE COURT ON 02-02-2012 DELIVERED THE FOLLOWING:** **SP** **O.P.(C).No. 2577 of 2011 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT. P1 - COPY OF THE ELECTION PETITION DATED 22/11/2010. EXT. P2 - COPY OF THE OBJECTION DATED 31/01/2011 FILED BY THE PETITIONER HEREIN. EXT. P3 - COPY OF THE ORDER DATED 28/07/2011 OF THE LEARNED MUNSIFF. EXT. P4 - COPY OF THE NOTICE DATED 29/07/2011.** ## **RESPONDENTS' EXHIBITS:- NIL** **//TRUE COPY//** **P.A. TO JUDGE.** **SP** ## **S.S.SATHEESACHANDRAN, J.** **----------------------------------------------O.P(C).No.2577 of 2011 ----------------------------------------------Dated this the 2[nd] day of February, 2012** ## **JUDGMENT** Petitioner is the returned candidate from Ward No.II from Kuzhupilli Grama Panchayat. His election was challenged by the 1st respondent filing an election petition as Election (OP)No.9/10 before the Munsiff's Court, North Parur. Petitioner was declared elected by a majority of 12 votes, over and above the votes polled by the petitioner in the election petition. During the counting of votes in the above Ward, 42 votes had been set apart as the returning officer entertained doubts over their validity. Such separated ballot papers were examined later after counting the rest of the votes. On such further scrutiny 31 of the ballot ## **O.P(C).No.2577 of 2011** ## **:: 2 ::** papers among them were declared as invalid and the rest accepted. The gist of the challenge raised by the petitioner in his election petition was that the returning officer has not properly scrutinised the ballot papers set apart during counting on suspicion of its validity and what had been rejected later as invalid votes from them was done arbitrarily to advance the prospects of the returned candidate/1st respondent, who was declared as the returned candidate of having been elected by a majority of 12 votes. Had there been a proper scrutiny of the votes set apart as invalid votes, petitioner in the election petition would have won the election by a majority of 20 votes over and above the votes polled by the 1st respondent, the returned candidate, was his case to set aside the election of the 1st respondent and to ## **O.P(C).No.2577 of 2011** ## **:: 3 ::** declare him as the elected candidate from the above ward. The 2nd respondent in the election petition was another candidate who contested the election from the ward, but, he did not respond to the notice to the election petition. The 1st respondent, the petitioner herein, alone resisted the election petition filing Ext.P2 statement. None of the parties tendered any evidence in the election petition either oral or documentary. 2. The learned Munsiff, after hearing the parties and taking up the election petition for disposal, passed Ext.P3 order reopening the case holding that the ballot papers already produced before the court have to be examined for a just and proper adjudication of the case. Propriety and correctness of Ext.P3 order is assailed by the petitioner, the returned candidate invoking ## **O.P(C).No.2577 of 2011** **:: 4 ::** the visitorial jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. From the submissions made by the counsel, it appears that the votes polled from the ward involved in the election had been produced before the court allowing an application moved by the petitioner in the election petition. In the given facts of the case whether the court below was justified in passing Ext.P3 order for scrutiny of the ballot papers polled in the election, that alone, arises for consideration. On mere asking of a party, whether he be a defeated candidate in the election or an elector from the ward challenging the election of the returned candidate, no court can order for scrutiny of ## **O.P(C).No.2577 of 2011** ## **:: 5 ::** the ballot papers polled in the election. Secrecy of the ballots polled in the election is sacrosanct and a scrutiny or recounting is permissible only where a case is made out for adopting such a course by the court. Such a course, no doubt, can be taken only where there is sufficient pleading with material particulars in the election petition and also evidence in support to sustain the allegations thereof, as the court deciding a challenge against the election of a returned candidate without being satisfied of a strong case for scrutiny and recounting of the votes polled cannot proceed to do so as the secrecy of the ballots has to be respected of. This court as well as the Apex Court has stated in unequivocal terms that on the mere asking of one or the other party, without entering a finding on the materials ## **O.P(C).No.2577 of 2011** ## **:: 6 ::** placed as to why scrutiny and recounting of the votes polled is essential for resolving the disputes raised in the election petition, it cannot at all be ordered {see Indulekha v. Preethakumari {2010(2) ILR 468}. In the present case where no evidence has been let in by the petitioner in the election petition - 1[st] respondent, and that too, after taking up the case for disposal and hearing the parties, for the reason that the ballot papers polled had been brought to the court on an application moved earlier, it was improper for the court to order a scrutiny of the ballot papers. Even if some allegations are raised in the election petition for such examination that has to be considered by the court with reference to the principles applicable for ordering of recounting and scrutiny of the ballot papers. ## **O.P(C).No.2577 of 2011** ## **:: 7 ::** Ext.P3 order passed by the court unsupported by any evidence let in the case cannot be sustained. 5. Ext.P3 order is set aside and the learned Munsiff is directed to consider afresh whether any recounting or scrutiny of the ballot papers has to be ordered in the case, taking note of the observations made above, and in accordance with law. Original petition is disposed of as above. Sd/(S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//