The petitioner who contested the election from Ward No.35 of the newly constituted Feroke Municipality questions the notification issued by the Kerala State Election Commission for a re-poll. The Electronic Voting Machine (J.34139) installed in one of the booths developed a technical snag in the midst of poll on 2.11.2015 and refused to record votes. A Control Unit error was shown in the Electronic Voting Machine and about 135 voters had by then exercised their right in the polling booth in question. The Returning Officer summoned the technician deputed by the manufacturer of the Electronic Voting Machine who after inspection opined that the same is not fit for further use. Another Electronic Voting Machine (G.58307) was supplied and the polling resumed after 45 minutes as evident by Annexures R1(A) letter, R1(B) receipt and R1 (C) report of the Returning Officer.

2. It was found during the counting of votes on 7.11.2015 that the votes recorded by the Electronic Voting Machine (J.34139) since replaced could not be retrieved despite best efforts. The engineers of the Electronics Corporation of India Limited who is the manufacturer of the Electronic Voting Machine sought assistance over phone from their head office. The engineers confessed that the chances of retrieval from the Electronic Voting Machine (J.34139) was only 50% even if experts from the head office are brought. The Electronic Voting Machine was certified as faulty by the engineers and sealed in the presence of the candidates and the polling agents. The matter was reported to the State Election Commission through the District Election Officer and the Returning Officer recommended for a re-poll in the booth. The matters that transpired as above are reflected in Annexures R1 (D) report and R1(E) letter of the Returning Officer and the District Election Officer. This had prompted the State Election Commission to issue Ext.P3 notification directing a re-poll for the booth in question to be held on 9.11.2015.

3. The use of voting machine in elections has been specifically recognised in Section 130A of the Kerala Municipality Act, 1994 [the Act for short] inserted by Act 33 of 2005. The same reads as follows:-

130A. Use of voting machine in elections:- Notwithstanding anything contained in this Act or rules made thereunder, the system of giving vote and recording of vote by using voting machine as may be prescribed may be adopted in every election decided by the State Election Commission considering the circumstances in each region.

Explanation:- For the purpose of this section ' voting machine' means any electronic machine or any other machine used for giving or recording of votes and it shall also be construed that any reference as to ballot box or ballot paper in this Act or the rules made thereunder save as otherwise provided shall include the reference to a voting machine which is being used in any election. (Emphasis supplied)

Thus a distinction has been drawn between the system of giving of vote by the voters and the recording of vote by the voting machines evident by the conscious use of the expressions in the Statute. A corresponding amendment has been made under Section 128(1)(aa) of the Act also inserted by Act 33 of 2005 as regards the conduct of fresh poll. The same reads as under:-

128. Fresh poll in the case of destruction, etc., of ballot boxes:-

(1) If at any election -

(a) any ballot boxes used at a polling station or at a place fixed for the polls is unlawfully taken out of the custody of the Presiding Officer or the Returning Officer, or is accidentally or intentionally destroyed or lost, or is damaged or tampered with, to such an extent, that the result of the poll at that polling station or place cannot be ascertained; or

(aa) any voting machine develops a mechanical failure during the course of recording votes; or

(b) any such error or irregularity in procedure as is likely to vitiate the poll is committed at a polling station or at a place fixed for