Important points:
• In Hari Ram v. Hira Singh (AIR 1984 SC 396) it was held that inspection of a ballot papers and counter foils should be allowed very sparingly and only when it is absolutely essential to determine the issue.
• A person could exercise his right of franchise only in respect of one constituency, whether it will be called a “Ward” or in any other name in respect of an election.

A. HARIPRASAD, J.

1. Original petition filed under Art.227 of the Constitution of India challenging the order passed by the learned District Judge, Kottayam on an interlocutory application in an Election Petition.

2. Petitioner is the 1st respondent in O.P. (Election) No.2 of 2015. He defeated the 1st respondent, the closest unsuccessful candidate in the election, by a slender margin of one vote. Both of them contested in Division No.08 - Poonjar of Erattupetta Block Panchayat. General election to the Panchayats and other local self governments was held on 05.11.2015.

3. 1st respondent filed the election petition before the court below under Sections 88(1)(b) and 89 of the Kerala Panchayat Raj Act, 1994 (in short, “the Act”) seeking to declare the election of the petitioner void and to declare him as the returned candidate. It is mainly contended in the election petition that there was illegal reception of certain void votes. It was further contended that one voter having Sl. No. 883 of 01 - Perunilam Ward of Poonjar Grama Panchayat was entered as Sl.No.147 of 07 - Pulikkapalam Ward of the same Grama Panchayat. He had cast vote in both the Wards coming under different Divisions of Erattupetta Block Panchayat. Therefore, reception of his vote is liable to be declared void.

4. Further allegation is that three voters, whose names are shown in the petition, who have been entered in the voters list of 02 - Mattakkadu Ward of Poonjar Grama Panchayat, are also included as voters in 020 - Town Ward of Erattupetta Municipality. The said three voters also had cast their votes in both the Wards and thus committed the wrong of double voting. Reception of their votes was also bad in law.

5. Yet another voter included in the voters list of 03 - Palace Ward of Poonjar Grama Panchayat was seen included in 011 - Kuttimaram Parambu Ward of Erattupetta Municipality. He also exercised his franchise in both the Wards. Thus reception of five votes, as described in the election petition, is to be treated as void and to be excluded from the number of valid votes.

6. 1st respondent opposed the election petition by filing a counter statement. According to the 1st respondent, the petition is not maintainable in law. The allegation, that one person figuring in two Wards of the same Grama Panchayat has cast vote twice, is denied. The 1st respondent would contend that name and other details of the said person mentioned in the petition per se would show that it cannot be one and the same person.

7. With respect to double voting by persons figuring in the voters lists of Grama Panchayat and Municipality, it is contended by the 1st respondent that the mischief of double voting will be attracted only when votes are cast in more than one constituency of the same level. Stated precisely, if a person votes in a constituency of Block Panchayat and also in a Municipality, the mischief of double voting will not be attracted.

8. Heard Sri. K.Gopalakrishna Kurup, the learned Senior Counsel appearing for the petitioner and Sri. S.Sreekumar, the learned Senior Counsel appearing for the 1st respondent.

9. The impugned order was passed by the learned District Judge in Ext.P3 application. Ext.P3 was filed by invoking Sections 94 and 151 and also Order XVI of the Code of Civil Procedure, 1908 (in short, “CPC”) read with Section 94 of the Act. Prayer in the petition is to issue summons to the District Collector, Kottayam, as the District Electoral Officer, to produce the entire records of election kept by him in safe custody as per Rule 55A of the Kerala Panchayat Raj (Conduct of Election) Rules, 1996 (in short, “the Rules”); particularly the vote register in Form 21A, voters list copy used at the time of election by the Presiding and Polling Officers, result sheet in Form 24A Parts I and II, memory chip of the electronic voting machine with voting machine to decipher and delete votes, if necessary. The learned District Judge, by the impugned order, allowed the petition in