V. Chitambaresh, J.

1. Can the enquiry in a petition for recrimination commence when once the result of the declared candidate has been found to be materially affected or only after the declaration that his election is void in the election petition? Should not the appellate court being the final court of facts compare the signatures found in the relevant documents by itself in order to decipher as to whether there has been double voting or voting by impersonation? These issues crop up in an election petition filed under S. 89 of the Kerala Panchayat Raj Act, 1994 ('the Act' for short) which stands allowed by the election court and confirmed in appeal. The following are the tally of votes secured by all the candidates who contested from Ward No. VI of Asamannoor Grama Panchayat in Ernakulam District in the election held under the provisions of the Act on 25.10.2010:

The Returning Officer found that an equality of votes of 324:324 exists and therefore decided to draw a lot between the election petitioner and the returned candidate as enjoined under S. 79 of the Act. The addition of one vote would have entitled any one of those candidates to be declared elected and the election process proceeded as if the candidate on whom the lot fell had received an additional vote. The declaration of result followed on 27.10.2010 and the same was challenged by the election petitioner under S. 102(1)(d) (iii) of the Act on the ground that there has been an improper reception of void votes. The election petitioner contended that a total number of four votes are liable to be eschewed from the account of the returned candidate on the ground of double voting and impersonation. The returned candidate filed a petition for recrimination under S. 99 of the Act contending that a total number of four votes are liable to be eschewed from the account of the election petitioner on the same grounds. The election court held that two voters had cast double votes and that one vote had been cast by impersonation after a composite enquiry of the election petition and the petition for recrimination. Three votes were eschewed from the account of the returned candidate and two votes from the account of the election petitioner in that exercise. The total number of votes varied to 321:322 and hence the election of the returned candidate was declared to be void and the election petitioner declared as the successful candidate. The decision of the election court was unsuccessfully impugned in appeal filed by the returned candidate under S. 113 of the Act and the challenge is pursued in this Civil Revision Petition.

2. Mr. P.V. Balakrishnan, Advocate on behalf of the returned candidate contended that an enquiry in the petition for recrimination was warranted if and only when his election was declared to be void in the election petition. It may be true that two voters by name Kumaran Nair (PW. 2) and Boban Thampi (PW. 3) had cast double votes as was found in the election petition by the courts below. But the extrication of those two votes revealed that one was cast in favour of the returned candidate and the other in favour of the election petitioner again equalising the tally of votes to 323:323. The decision of the Returning Officer in the contingency of equality of votes under S. 79 of the Act would be effective also for the purpose of the election petition. Reliance was placed on S. 104 of the Act which is extracted below:

104. Procedure in case of an equality of votes - If during the trial of an election petition it appears that there is an equality of votes between any candidates at the election and that the addition of one vote would entitle any of those candidates to be declared elected, then-

(a) any decision made by the returning officer under the provisions of this Act shall, insofar as it determines the question between those candidates, be effective also for the purposes of the petition; and

(b) insofar as that question is not determined by such a decision th