K.S.SAUDA BEEVI v. SUBAIDA PAREETH

“C.R. “V.CHITAMBARESH, J.-------------------------------C.R.P.No.407 of 2012-------------------------------Dated this the 29th day of November, 2012O R D E RCan the enquiry in a petition for recriminationcommence when once the result of the declared candidate hasbeen found to be materially affected or only after thedeclaration that his election is void in the election petition?Should not the appellate court being the final court of factscompare the signatures found in the relevant documents byitself in order to decipher as to whether there has been doublevoting or voting by impersonation? These issues crop up in anelection petition filed under Section 89 of the Kerala PanchayatRaj Act, 1994 ('the Act' for short) which stands allowed by theelection court and confirmed in appeal. 2. The following are the tally of votes secured by allthe candidates who contested from Ward No.VI of AsamannoorGrama Panchayat in Ernakulam District in the election heldunder the provisions of the Act on 25.10.2010: C.R.P.No.407 of 20122Sl. No. CandidateVotes Secured 1. Election Petitioner 324 2. Returned Candidate 324 3. Second respondent132 4. Third respondent 100The Returning Officer found that an equality of votes of324:324 exists and therefore decided to draw a lot betweenthe election petitioner and the returned candidate as enjoinedunder Section 79 of the Act. The addition of one vote wouldhave entitled any one of those candidates to be declaredelected and the election process proceeded as if the candidateon whom the lot fell had received an additional vote. Thedeclaration of result followed on 27.10.2010 and the same waschallenged by the election petitioner under Section 102(1)(d)(iii) of the Act on the ground that there has been an improperreception of void votes. The election petitioner contended thata total number of four votes are liable to be eschewed from theaccount of the returned candidate on the ground of double C.R.P.No.407 of 20123voting and impersonation. The returned candidate filed apetition for recrimination under Section 99 of the Actcontending that a total number of four votes are liable to beeschewed from the account of the election petitioner on thesame grounds. The election court held that two voters hadcast double votes and that one vote had been cast byimpersonation after a composite enquiry of the electionpetition and the petition for recrimination. Three votes wereeschewed from the account of the returned candidate and twovotes from the account of the election petitioner in thatexercise. The total number of votes varied to 321:322 andhence the election of the returned candidate was declared tobe void and the election petitioner declared as the successfulcandidate. The decision of the election court wasunsuccessfully impugned in appeal filed by the returnedcandidate under Section 113 of the Act and the challenge ispursued in this Civil Revision Petition. 3. Mr.P.V.Balakrishnan, Advocate on behalf of the C.R.P.No.407 of 20124returned candidate contended that an enquiry in the petitionfor recrimination was warranted if and only when his electionwas declared to be void in the election petition. It may be truethat two voters by name Kumaran Nair (PW.2) and BobanThampi (PW.3) had cast double votes as was found in theelection petition by the courts below. But the extrication ofthose two votes revealed that one was cast in favour of thereturned candidate and the other in favour of the electionpetitioner again equalising the tally of votes to 323:323. Thedecision of the Returning Officer in the contingency of equalityof votes under Section 79 of the Act would be effective also forthe purpose of the election petition. Reliance was placed onSection 104 of the Act which is extracted below: 104. Procedure in case of an equality ofvotes -- If during the trial of an election petition itappears that there is an equality of votes between anycandidates at the election and that the addition of onevote would entitle any of those candidates to bedeclared elected, then--(a)any decision made by the returning officerunder the provisions of this Act shall, insofar as it C.R.P.No.407 of 20125determines the question between those candidates,be effective also for the purposes of the petition; and (b)insofar as that question is not determinedby such a decision the Court shall decide betweenthem by lot and proceed as it the one on whom the lotthen falls had received an additional vote.It was pointed out that the tally of votes of 323:323 asbetween the returned candidate and the election petitioner wasupset as 321:322 only after the enquiry in the petition forrecrimination. It was asserted that the enquiry in the petitionfor recrimination could not have commenced at all when theelection of the returned candidate was not liable to be declaredvoid in the election petition. 4. Mr.C.S.Ajith Prakash, Advocate on behalf of theelection petitioner contended that the returned candidatecannot bank on the decision of the Returning Officer on theequality of votes in the instant case. This is because the tallyof votes of 324:324 at the time of counting by the ReturningOfficer was varied to 323:323 after the enquiry in the electionpetition by the election court. The sanctity of the decision of C.R.P.No.407 of 20126the returning officer on the equality of votes under Section 79of the Act would be effective for the purpose of the electionpetition only if the tally continues to be the same. Section104 (a) of the Act making the decision of the Returning Officereffective also for the purpose of the election petition cannothave any application when the tally of votes was altered from324:324 to 323:323. The enquiry in the petition forrecrimination was warranted since the result of the election ofthe returned candidate had been 'materially affected' after theenquiry in the election petition. The enquiry in the petition forrecrimination disclosed that two voters by name Maitheen(PW.7) and Khadeeja (PW.8) had cast double votes and thatthe vote of Mohammed (PW.6) was cast by impersonation. Thisbrought the tally of votes as between the returned candidateand the election petitioner to 321:322 necessitating adeclaration to set aside the election and further declare thesuccessful candidate. 5. I am of the firm view that the decision of the C.R.P.No.407 of 20127Returning Officer under Section 79 of the Act when there wasan equality of votes would be effective also for the purpose ofthe election petition only if the tally of votes continues to bethe same. The number of votes in the instant case as betweenthe returned candidate and the election petitioner was alteredfrom 324:324 to 323:323 after an enquiry in the electionpetition on the basis of evidence. The benefit of Section 104(a) of the Act cannot therefore be called in aid by the returnedcandidate to maintain that the draw of lot by the ReturningOfficer would be effective also in the election petition. Afresh draw of lot as between the returned candidate and theelection petitioner would have been necessary in the absenceof a petition for recrimination. The enquiry in the petition forrecrimination was warranted since the result of the returnedcandidate had been 'materially affected' notwithstanding that adeclaration to the effect that his election is void was not made.The Supreme Court in Ahammed Kabeer v. Azeez [(2003) 2KLT 472 (SC)] after referring to Jabar Singh v. Genda Lal C.R.P.No.407 of 20128[AIR 1964 SC 1200] and a catena of other decisions on thepoint summed up as follows:-33. ..........(1)................(2)A recrimination by the returned candidate orany other party can be filed under S.97(1) in acase where in an election petition an additionaldeclaration is claimed that any candidate otherthan the returned candidate has been dulyelected. (3)For the purpose of enabling an enquiry thatany votes have been improperly cast in favourof any candidate other than the returnedcandidate or any votes have been improperlyrefused or rejected in regard to the returnedcandidate the election court shall acquirejurisdiction to do so only on the two conditionsbeing satisfied: (i) the election petition seeks adeclaration that any candidate other thanreturned candidate has been duly elected overand above the declaration that the election ofthe returned candidate is void; and (ii) therecrimination petition under S.97(1) is filed. (4)................(5)................ C.R.P.No.407 of 20129The above decision though rendered in the context of theprovisions of the Representation of the People Act, 1951applies on all fours to the case on hand wherein also theconditions prerequisite are fully satisfied. I should also bearin mind that Jabar Singh's case and Janardan DattuappaBondre's case [AIR 1974 SC 1617] dealt with situationswhere a petition for recrimination was absent. Thecommencement of enquiry by the election court in the petitionfor recrimination when the result of the declared candidate wasfound materially affected cannot therefore be faulted with.6. I am however disturbed at the fact that theappellate court though a final court of facts has not by itselfcompared the disputed signatures of the challenged votersfound in the various documents. The lower appellate court inpara 9 of the judgment observed as follows:-“Court below compared the signature in Ext.X9counter foil with that of PW.2 in his deposition andfound out striking similarities.” It was observed again in para 11 of the judgment as follows:- C.R.P.No.407 of 201210“Court below compared the signatures inExts.X17 and X18 under Section 73 of Evidence Actand came to the conclusion that both signatures aresimilar.”Finally the lower appellate court in para 15 of the judgmentobserved as follows:-“Factually also it can be seen that in this case,the trial court had only compared the signatures of afew voters and therefore the chance of error will bealmost an impossibility. Hence it is evident that thecourt below was perfectly justified in comparing thesignatures of Pws.2, 3 and 7 with the admittedsignatures and arriving at the conclusion that theycast double votes. ”It is thus clear that the appellate court had not taken uponitself the task of comparing the signatures with naked eye asempowered under Section 73 of the Indian Evidence Act, 1872even though it was a final court of facts. There was adivergence of judical opinion as to whether the election courtcould indulge in the comparison of the disputed signature orwriting with the admitted or proved signature or writing.Divergent views were so expressed in Neelalohitadasan C.R.P.No.407 of 201211Nadar v. George Mascrene [1994 (1) KLT 887] andO.Bharathan v. K.Sudhakaran and another [1996 (2) SCC704]. But this Court chose to follow the dictum inNeelalohitadasan Nadar's case in Mohammed Rafi.S. v.Fathahudeen and others [ILR 2008 (3) Kerala 641] . Thesame was done in Indulekha v. Preetha Kumari and others[2010 (2) KHC 113] also obviously because the decision inNeelalohitadasan Nadar's case was rendered by a LargerBench. I also notice that the dictum in NeelalohitadasanNadar's case has been quoted with approval in Kuldip Nayarv. Union of India [2006 (7) SCC 1] to hold that purity ofelection is utmost than secrecy. 7. There is no indication anywhere in the judgmentof the lower appellate court that the signatures were comparedby itself to concur with the finding of the election court exceptmerely stating that the trial court had done the comparison.The Supreme Court later in I. Vikheshe Sema v. HikisheSema [1996 (4) SCC 53] had directed as follows:- C.R.P.No.407 of 201212“We depute the Registrar (Judicial) of thisCourt to make an inspection after notice to and inthe presence of the parties and their counsel, of allthe said ballot papers, identify the void votes whichhad been cast in respect of Polling Stations Nos.5, 6,21 and 28 and to exclude the said votes and thencount the number of votes received by each of thefive candidates. The report should be submitted tothis Court by the Deputy Registrar within eightweeks.”I therefore set aside the judgment of the appellate court andremand A.S. (Election) No.8/2012 to the court of the DistrictJudge of Ernakulam for de novo consideration after followingthe course as above. The appellate court shall commence theenquiry in the petition for recrimination if it is found that theresult of the declared candidate has been materially affectedafter the enquiry in the election petition. The same has toproceed stage wise even though it is a composite enquiry ofthe election petition and the petition for recrimination as heldin Abdulla Haji v. Mohammed (2008 (4) KHC 215). Theappellate court shall by itself compare the signatures of the C.R.P.No.407 of 201213disputed voters found in the vote register, counter foil of theballot papers, the summons and also the deposition to reach asafe conclusion. The appellate court shall do so in the presenceof the parties to the election petition and their counsel eitherto concur with the opinion of the election court or differ fromit. The parties will appear in the appellate court on10.12.2012 and the proceedings shall be taken to a logical endwithout delay during which time the status quo as on todaywould continue. The Civil Revision Petition is allowed. No costs. V.CHITAMBARESHJUDGE nj.