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1971 Supreme(Ker) 2
Judges : P.NARAYANA PILLAI
A.ESSUDDIN - Appellant
Versus
P.NEELAKANTAN AND OTHERS - Respondent
Case No : E. P. No.1 of 1970
Decided On : 01/04/1971
Advocates Appeared :
S. Eswara Iyer; E. Subramony; For Petitioner M. P. Menon; M. Ramachandran; For Respondent No.1
Headnote:
ELECTION - Irregularities in counting of votes - Effect - Improper reception, refusal or rejection of votes - Non-compliance with provisions of Constitution and Representation of People Act - Material effect on result of election - Grounds for setting aside election - Burden of proof - Recount of votes - Grounds - Court's power to grant recount.
Fact of the Case:
Petitioner, who lost the election to the Kazhakkuttam Assembly Constituency, filed an election petition alleging various irregularities in the counting of votes. The main allegations were that unauthorized persons were present in the counting hall, that the Returning Officer allowed them to assist him in counting votes, that the Returning Officer refused to recognize and receive duplicate of appointment of counting agents of the petitioner, that counting agents of the petitioner were denied access to the counting hall, that N.G.Os. having sympathies for the Communist Party of India (Marxist) were allowed to assist the Returning Officer in counting votes, that votes polled in favor of the petitioner were included in the bundles of fifties made out for the first respondent, that ballot papers were misplaced by persons who assisted in the counting of votes, that there was miscount, that valid votes polled by the petitioner were treated as invalid, that invalid votes marked for the petitioner were counted as valid votes for the first respondent, that the Returning Officer did not check the bundles of fifties taken to him by the counting officers, and that irregularities were committed by the Returning Officer at the time of counting as alleged by the petitioner.
Finding of the Court:
1. The court found that there were some irregularities in the counting of votes, such as the presence of unauthorized persons in the counting hall and the failure of the Returning Officer to sign in Part II of the Ballot Paper Accounts in Form 16. However, the court held that these irregularities were not of such a nature as to materially affect the result of the election. 2. The court also found that the petitioner had not been able to prove that the result of the election had been materially affected by any of the alleged irregularities. The court noted that the petitioner had not raised any objections to the counting process at the time it was taking place, and that he had not filed an application for recount until after the result had been declared. 3. The court concluded that the petitioner had failed to prove any of the grounds for setting aside the election under Section 100(1)(d) of the Representation of the People Act, 1951, and dismissed the petition.
Issues: 1. Whether unauthorized persons were present in the counting hall? 2. Whether the Returning Officer allowed them to assist him in counting votes? 3. Whether the Returning Officer refused to recognize and receive duplicate of appointment of counting agents of the petitioner? 4. Whether counting agents of the petitioner were denied access to the counting hall? 5. Whether N.G.Os. having sympathies for the Communist Party of India (Marxist) were allowed to assist the Returning Officer in counting votes? 6. Whether votes polled in favor of the petitioner were included in the bundles of fifties made out for the first respondent? 7. Whether ballot papers were misplaced by persons who assisted in the counting of votes? 8. Whether there was miscount? 9. Whether valid votes polled by the petitioner were treated as invalid? 10. Whether invalid votes marked for the petitioner were counted as valid votes for the first respondent? 11. Whether the Returning Officer did not check the bundles of fifties taken to him by the counting officers? 12. Whether irregularities were committed by the Returning Officer at the time of counting as alleged by the petitioner? 13. Whether there was sufficient accommodation in the counting hall for proper checking and counting of votes? 14. Whether persons below 21 as on 111970 were included as electors in the electoral rolls? 15. Whether the petitioner is competent to impeach the validity of electoral roll? 16. Whether persons dead or out of station were impersonated by others at the time of voting? 17. Whether the petitioner informed the Returning Officer that he intended to apply for recount, requested him not to declare the result and complete and sign the result sheet in Form No. 20 and proceeded to write an application as mentioned in the petition? 18. Whether reasonable opportunities were afforded to the petitioner to file an application for recount before completing and signing the result sheet in Form No. 20? 19. Whether the result of the election was materially affected by improper reception, refusal or rejection of any vote or the reception of any vote which was void? 20. Whether the Returning Officer did not appoint counting supervisors under Rule S3 and whether they and the Returning Officer did not fill up and sign Part,11 of Form 16 as alleged in the petition? 21. Whether the result of the election was materially affected by non compliance with the provisions of the Constitution or Representation of the People Act or the Rules or orders made under that Act? 22. Whether the petitioner is entitled to a recount of all or any of the ballot papers? 23. Whether the election of the first respondent is void? 24. Whether the petitioner is entitled to a declaration that he has been duly elected? 25.To what reliefs, if any, is the petitioner entitled? 26. What is to be the order as to costs?
Ratio Decidendi: 1. In order to set aside an election under Section 100(1)(d) of the Representation of the People Act, 1951, the petitioner must prove that the result of the election has been materially affected by one or more of the following: (a) improper acceptance of any nomination, (b) corrupt practice committed in the interests of the returned candidate, (c) improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (d) non-compliance with the provisions of the Constitution or the Act or of rules or orders made under the Act. 2. The burden of proof is on the petitioner to show that the alleged irregularities have materially affected the result of the election. 3. The court will not set aside an election for minor irregularities that do not affect the result of the election.
Final Decision: The petition was dismissed with costs.
1. This petition relates to the election to the Kazhakkuttam Assembly Constituency at which the first respondent who was the returned candidate and three others including the petitioner were the contesting candidates.
2. In the last mid-term election for the Kerala State Assembly the petitioner contested as a candidate of the Muslim League and the first respondent of the S. S. P. supported by the C. P. I. (Marxist). The second respondent was a candidate of the Congress under the Presidentship of Sri..Nijalingappa. The third respondent contested as an Independent.
3. The polling took place on September 17th last year and the counting on the succeeding day. It was at the Basic Training School at Attingal that the counting took place.
4. The total number of votes polled was 52,576. Of these 701 were declared invalid. The first respondent received 23,425 votes as against the petitioner the next candidate who got 23,314 votes. There was thus a majority of 111 votes in favour of the returned candidate. The second and third respondents received only 4,082 and 1,054 votes respectively. The result of the poll was declared on the 18th itself. The candidate who secured the second largest number of votes has preferred this election petition on October the 5th.
5. According to the petitioner the election of the first respondent is void. There was improper refusal and rejection of valid votes in his favour. There was also improper reception in favour of the first respondent of invalid votes. There was noncompliance of the provisions of the Constitution and the Representation of the People Act, 43 of 1951 hereinafter referred to as the Act, and the Rules framed under that Act, hereinafter referred to as the Rules. On account of all these the result of the election in so far as it concerns the returned candidate has been materially affected.
6. Some of the voters entered in the electoral rolls were below 21 as on the qualifying date of January, the first, 1970, and they voted in favour of the first respondent. Dead persons and persons outside stations were impersonated by others who voted for the first respondent.
7. Various irregularities were committed by the Returning Officer at the time of counting of votes. He allowed persons other than those appointed by him as Counting Assistants and Counting Supervisors to assist him in the counting of votes. Even peons of the Taluk Office, Trivandrum, were allowed to assist him in the counting of votes.
8. Persons other than the candidates and their election agents and counting agents were freely admitted inside the counting hall. The Tahsildar, Trivandrum, and the Sub Inspector of 'Police, Kazhakuttam, were present at the time of the counting. They were not on duty in connection with the election in the Kazhakkuttam Constituency.
9. The counting agents of the petitioner were denied access inside the counting hall. The Returning Officer arbitrarily and capriciously refused to recognise and receive duplicate of the appointment in Form 18 of the counting agents of the petitioner.
10. Many of the persons allowed to assist the Returning Officer were N. G. Os. having sympathies for C1P. (Marxist).
11. Counting was done in haste. Votes were misplaced by persons who took part in the counting. Mistakes were committed in tying up of bundles of fifty votes. Votes polled in favour of the petitioner were included in bundles of fifties made out for the first respondent.
12. No counting supervisor was appointed by the Returning Officer. In the Ballot Paper Accounts in Form 16 necessary entries were not made either by the counting supervisor of the Returning Officer.
13. The counting ball was insufficient to accommodate the persons inside.
14. The Returning Officer did not check the bundles of fifties taken to him by the Counting Supervisors. Not even random check was made by him to assure himself about the correctness of the count. The result of the election has been materially affected by all these irregularities.
