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2017 Supreme(Ker) 1448
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.M. Shaffique, J.
Benny - Appellant
Vs.
Smt. E.S. Bijimol - Respondent
El.Pet. No. 6 of 2016
Decided On : 06-03-2017
Advocate Appeared:
For the Appellant : Mr. Sabu Thomas (Thudiamplackal), Sri. Mathews K. Uthuppachan, Sri. Sharan Shahier, Sri. Terry V. James
For the Respondent: Mr. C.S. Manu, Sri. S.K. Premraj, Sri. T.B. Sivaprasad, Smt. Neethu. K. Shaji, Sri. C.Y. Vijay Kumar, Mr. S. Sreekumar, Sri. Biju C. Abraham, Sri. P. Martin Jose, Sri. P. Prijith, Sri. Thomas P. Kuruvilla, Sri. Ajay Ben Jose, Sri. Manjunath Menon, Binu Mathew, Mr. M. Dinesh
The petitioners must prove both the non-compliance of statutory rules and the material effect on the election result required under Section 100(1)(d) of the Representation of People Act, 1951, to succeed in an election petition.
Headnote:
Election Petition - Violation of Rule 56C of Conduct of Election Rules, 1961 - Failure to Obtain Signatures of Counting Agents in Form 17C - Alleged Mistakes in Tabulation Sheets - Court's Analysis of Legal Provisions and Decision
Fact of the Case:
The petitioners challenged the election of the first respondent, alleging that the Returning Officer failed to obtain the signatures of the candidates or their agents in Part II of Form No. 17C and that there were mistakes in the tabulation sheets. The election was held using Electronic Voting Machines (EVMs). The petitioners sought to declare the election of the first respondent as void and to declare the second respondent as the duly elected candidate.
Finding of the Court:
The court found that while some Form 17Cs did not contain the signatures of counting agents, the evidence indicated that the counting supervisors had obtained signatures from those present at the time of preparation. The court held that the Returning Officer was not obligated to obtain signatures at a later time and that there was no deliberate violation of Rule 56C(2)(b). The court also noted that the petitioners did not request a recount, and the alleged mistakes in tabulation sheets did not materially affect the election result.
Issues: The issues included whether the Returning Officer and counting officials violated Rule 56C of the Conduct of Election Rules, whether the second respondent received the majority of votes, and whether the facts disclosed reasons for setting aside the election in terms of Section 100(1)(d) of the Representation of People Act, 1951.
Ratio Decidendi: The court held that the petitioners failed to prove both the non-compliance of statutory rules and the material effect on the election result required under Section 100(1)(d). The court emphasized that the petitioners had the burden of proving that the election result was materially affected by the alleged violations.
Final Decision: The election petition was dismissed, and the parties were ordered to bear their own costs.
A.M. Shaffique, J.
Petitioners are voters of Peerumedu Assembly Constituency during the Kerala Legislative Assembly elections held on 16th May 2016. They challenge the election of first respondent, inter alia contending that the Returning Officer failed to obtain the signatures of the candidates or their agents in Part II of Form No. 17C (hereinafter referred as 'Form 17C') and further contending that there had been certain mistakes in the tabulation sheets, and the corrections were not properly countersigned. Though a contention was urged alleging that the returning officer should have rejected the nomination since there was non-compliance of the statutory requirement, the said contention was later withdrawn.
2. The short facts involved in the Election Petition reads as under:-
The election was held on 16th May 2016 and the election results were published on 19th May 2016. In respect of Peerumedu Assembly constituency, the first respondent was declared elected for a margin of 314 votes over the second respondent. Respondents 2 to 7 were the other candidates.
3. The polling in the above constituency was conducted by using Electronic Voting Machines (for short 'EVM'). It is alleged that the Returning Officer has violated Rule 56C of the Conduct of Election Rules, 1961 (hereinafter referred as the 1961 Rules'). Petitioners submit that, after counting from the EVM, the counting supervisor has to duly fill up Form 17C and sign it, thereafter he/she has to get the signature of the candidates or their agents, and it shall be handed over to the Returning Officer. The Returning Officer shall countersign Form 17C, after satisfying himself that the forms have been properly filled up and completed in all respects. If the Returning Officer is not satisfied that Form 17C is not properly prepared, he has the power to reject the votes so counted and order to recount the votes of the said EVM's only. It is contended that if the Returning Officer is satisfied that the forms are properly filled up and complete in all respects, he/she has to compile the final result in Form No. 20. It is submitted that rejection or acceptance of votes in a machine has the same effect of rejection or acceptance of votes in a ballot paper. It is contended that in most of Form 17C, the Returning Officer failed to obtain the signature of the candidates or their agents. It is alleged that 30 numbers of Form 17C had been admitted by the Returning Officer, which are not signed by the candidates or their agents. Petitioners further points out that, in the Annexure for tabulating the results in the 13th round, with reference to polling booth number 179, the total count of votes ought to have been 485, whereas it is recorded as 285 and 204 votes for first respondent has been corrected as 284. It is also contended that there are over-writings in the Annexure which are not certified by the Observer in all the pages. It is contended that in respect of Annexure of tabulating results, in page 1 column 11, 223 has been corrected as 228, in page 5 column 11, 460 has been corrected as 470, in page 10 column 3, 207 has been corrected as 217, in page 11 column 2, 200 has been corrected as 206, in column 6, 130 has been corrected as 230, in page 14 column 8, 71 has been corrected as 91, and 416 has been corrected as 456. On these facts, petitioners sought to declare the election of the first respondent as void and inoperative and to declare the second respondent having secured the majority of valid votes as the duly elected candidate in the election.
4. Objection has been filed by the first respondent denying the aforesaid contentions. It is stated that the Returning Officer had obtained the signature of all the counting agents or candidates who were present at the time of preparing Form 17C. Even if any such forms are unsigned, it was only on account of the fact that the agents were not available at the counting table. They also denied the fact that the tabulating trends in th
