Saifuneessa W/o Abdul Latheef v. Assain N.K. and Hafsath N.P.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940** ## **CRP.No. 472 of 2017** **AGAINST THE JUDGMENT IN AS(ELE) 87/2016 of DISTRICT COURT,MANJERI AGAINST THE ORDER IN OP(ELE) 5/2015 of MUNSIFF MAGISTRATE COURT, PERINTHALMANNA** ## **PETITIONER/1ST RESPONDENT/1ST RESPONDENT:** **SAIFUNEESSA W/O. ABDUL LATHEEF, AGED 43 YEARS, ELACHOLA VEEDU, MOTTAMMAL, KOOTTILANAGADI, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.** **BY ADVS. SRI.T.KRISHNANUNNI (SR.) SMT.MEENA.A. SRI.ASHWIN SATHYANATH SRI.SAJU.S.A SRI.VINAY MATHEW JOSEPH** **RESPONDENTS/APPELLANT & 2ND RESPONDENT/PETITIONER & 2ND RESPONDENT:** **1 ASSAIN N.K. S/O.KUNHALI, NADUVATH KALATHIL VEEDU, MOTTAMMAL,KOOTTILANGADI,PERINTHALMANNA TALUK, MALAPPURAM DISTRICT,PIN-676 506** **2 HAFSATH N.P. W/O. MUHAMMEDALI N.P., NADUVIL PEEDIYEKKAL VEEDU, PADINHAREMANNA, MOTTAMMAL, KOOTTILANGADI,PERINTHALMANNA TALUK, MALAPPURAM DISTRICT,PIN-676 506** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.SAJU J.VALLYARA SRI.S.SREEKUMAR (SR.)** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRP.No. 472 of 2017** **2** ## O R D E R An order of remand by the Appellate Court, in an Election Petition, is under challenge by the returned candidate. 2. Heard Sri. T. Krishnanunni, learned Senior Counsel for the petitioner and Sri. S. Sreekumar, learned Senior Counsel for the 1[st] respondent. 3. The Election Petition relates to the election held on 05.11.2015, to the “Ward 18 Mottammal” of Koottilangadi Grama Panchayath. The first respondent in the Election Petition is the returned candidate, second respondent is the defeated candidate. The petitioner is the election agent of the second respondent. For the sake of convenience, the parties are referred to according to their status in the **CRP.No. 472 of 2017** **3** Election Petition. 4. The counting and declaration of results was on 07.11.2015. Both the candidates secured 481 votes each. The 1[st] respondent-returned candidate got 479 polled votes and two postal votes thus making the total at 481, and the 2[nd] respondent-defeated candidate got 478 polled votes and 3 postal votes thus making the total at 481. Lots were taken, in which the first respondent turned successful. 5. The ground of challenge is the alleged improper acceptance of one postal ballot in favour of the returned candidate. In terms of Section 102(1)(b)(iii) of Kerala Panchayath Raj Act, improper receipt of vote in relation to a returned candidate is a ground to declare the election as void. Therefore, if it is found that there has been improper acceptance of a postal ballot in favour of the returned candidate, the election is to be **CRP.No. 472 of 2017** **4** declared void. There is a further prayer in the election petition, to declare the second respondent therein as the returned candidate. If it is found that one of the postal ballots in favour of the first respondent in the election petition could not have been accepted, then the total votes in his favour would be 480 and that of the second respondent in the election petition would be 481. The second respondent thus ought to be declared as the returned candidate. 6. The basis of the allegation regarding improper reception of a vote is that, the Form 16 declaration which accompanied one of the postal ballots counted in favour of the first respondent was not duly attested, as mandated under the statute. The plea was turned down by the trial court. The appellate court set aside the order and remanded the matter back to the trial court to verify the Form 16 declaration attached to the **CRP.No. 472 of 2017** **5** disputed postal vote. 7. I proceed to refer to the relevant statutory provisions regarding postal ballots and its counting, confining to those relevant on the facts of this case. Rule 22(2) of the Kerala Panchayath Raj (Conduct of Election) Rules 1995 provides that a postal ballot paper is to be accompanied by: 1. Declaration in Form No.16. 2. Instructions to electors in Form No.17. 3. A cover in Form No.18. 4. A large cover in Form No.19. Rule 23 of the Rules provide the mode of recording of vote in the postal ballot paper. The elector has to take the following steps. 1. Record his vote in accordance with the directions in part I of Form No.17. 2. Enclose the ballot in the cover in Form No.18. **CRP.No. 472 of 2017** **6** 3. Sign the declaration in Form No.16 before a stipendiary Magistrate or Gazetted Officer and have signature attested in accordance with the directions in part II of Form No.17. 4. The ballot paper enclosed in the cover in Form No.18 along with the declaration in Form No.16 shall be enclosed in the large cover in Form No.19 and forward it to the Returning Officer. 8. Rule 50 of the Rules relates to the scrutiny and counting of the postal ballot papers. Clauses (b) and (c) of Rule 51 provide that 1. The large cover in Form No.19 is to be opened. 2. The declaration in Form No.16 is to be scrutinized. 3. If the declaration is found defective or if - the serial number entered in Form No.16 differs from the serial number endorsed on **CRP.No. 472 of 2017** **7** the face of the cover in Form No.18, that cover shall not be opened. 9. Rules 2, 3 and 4 of Rule 50 are also relevant. In terms of Sub Rule (2) all the declarations in Form No.16 are to be kept in a separate packet. Sub Rule (3) of Rule 50 states that the Returning Officer shall thereafter open the cover in Form No.18, of the ballot papers that has not been rejected on the ground of defective declaration. 10. In the case at hand, the allegation is regarding defective attestation in Form No.16 declaration. The contention is that, though the Rules prescribed attestation by a stipendiary Magistrate or a Gazetted Officer, one of the declarations which was not attested by a competent officer as prescribed, but by an officer of the Electricity Board was accepted. The Appellate Court remanded the matter back to the trial court to call **CRP.No. 472 of 2017** **8** for and look into the Form 16 declaration to look into the attestation. Is such a course liable to be permitted or not, is the question. 11. In **Sushil Kumar v. Rakesh Kumar [2003(8) SCC 673]** the Apex Court has held, “that an Election Petition is not an action at law or a suit in equity”. A re-examination into the ballots, declaration etc., cannot be sought as a matter of right. There cannot be a roving enquiry to fish out materials. On the pleadings and the evidence, the court has to be satisfied that there has to be an inspection of the Form No.16 declaration. In matters relating to election, this has been the consistent view of the Apex Court. In **Jitendra Bahadur Singh v.** **Krishna Behari [AIR 1970 SC 276]** the Apex Court held that inspection of ballot papers can be permitted only on satisfaction of two conditions. 1. Election Petition must contain adequate statement of material facts on which the **CRP.No. 472 of 2017** **9** petitioner relies to support his case. 2. The Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection is necessary. 12. In **Ram Sewak Yadav v. Hussain Kamil Kidwai & Ors. [AIR 1964 SC 1249]** the Apex Court held that an order for inspection is not to be granted as a matter of course. The insistence of adequate statement of material facts and prima facie satisfaction of the court was stated. It was held that vague pleas not supported by material facts or to fish out evidence to support such pleas shall not be the basis for an order for inspection. It was observed, “the case of the petitioner must be set out with precision supported by averments of material facts.” It was further held that a mere allegation of suspicion or belief regarding improper reception or rejection of votes is not sufficient to **CRP.No. 472 of 2017** **10** order for inspection. 13. In **Vadivelu v. Sundaram & Ors. [2000 (8) SCC 355]** the Apex Court held thus: “The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the above allegation, it can order recount of votes. 14. In **Ashraf Kokkur v. K.V.Abdul Khader & Ors. [2015(1) SCC 129]** the Apex Court held that, the expression 'material facts' plainly means facts pertaining to the subject matter and which are relied on by the election petitioner. If the party does not prove those facts, he fails at the trial. 15. Section 91(a) of the Kerala Panchayath Raj Act mandates that an Election Petition shall contain a concise statement of the material facts on which **CRP.No. 472 of 2017** **11** the petitioner relies. 16. In the instant case as noticed supra, there is only a bare allegation that the Form 16 declaration was attested by an officer of the Electricity Board who is not a stipendiary Magistrate or a Gazetted Officer. As is seen in Rule 50(1)(c) the Form 16 declaration and the Form 18 cover bears the same serial number. The petitioner who was present at the time of counting does not specify the serial number. There were only five postal votes in total. Therefore, the petitioner could have very well specifically alleged the serial number of the defective declaration. The details of the attesting officer is not stated. There is only a vague statement regarding the identity of the attestor. According to the petitioner, when he objected to the acceptance of the Form 16 declaration noticing defective attestation and **CRP.No. 472 of 2017** **12** requested for scrutiny, the same was not made available by the Returning Officer. According to him, he immediately gave a written complaint. Ext P3 is stated to be a copy of the complaint. A reading of the same shows that it was submitted after counting, after the draw of the lots and after declaration of results. As PW1 in Cross-examination he would say that his statement that the Form 16 declaration was attested by an officer of the Electricity Board was a wild guess. In terms of Rule 48(3), the ballot papers of each candidate are to be bundled seperately, and are to be kept in separate packets along with the bundle of rejected ballot papers, and shall be sealed. The election agents who are present are allowed to affix seals. PW1 in cross-examination admits that the seal was affixed by him without any objection. Rule 51(2) provides that after completion of the counting of votes the election agent can apply in writing to the Returning **CRP.No. 472 of 2017** **13** Officer to recount the ballot papers stating the grounds on which he demands such recount. It is only thereafter that the results are announced and declared. The petitioner did not make such a request. In terms of Rules 50(2) and (3), the cover in Form 18 is opened only after the Form 16 declarations are kept in a seperate cover. Then how did the petitioner come to know that the vote was one casted in favour of the 2[nd] respondent, is not stated. 17. From the above, it can be concluded that there is no proper plea or evidence, with particulars, regarding the alleged defective declaration. On such vague pleas unsupported by any evidence, an inspection is not liable to be permitted. It would only amount to permitting a roving enquiry for fishing out evidence. The order of remand, directing inspection, is liable to be interfered with. **CRP.No. 472 of 2017** **14** In the result the CRP is allowed. The judgment of the appellate court is set aside. Order passed by the trial court is restored. SATHISH NINAN JUDGE - vdv/