IMPORTANT POINT
The main legal point established in the judgment is the application of Rule 38 of the Kerala Municipality (Conduct of Election) Rules, 1995, and Section 180 of the Kerala Municipalities Act in resolving an election dispute.

ORDER :

The first respondent in Election Petition No.1/2021, who is the appellant in A.S. (Election) No.27/2022, is the petitioner herein. The election under challenge pertains to the post of Councillor in Ward No.XXXIX of Kayamkulam Municipality, which was conducted on 08.12.2020. The results declared the petitioner herein as the returned candidate, having secured 433 votes. The first respondent herein secured 432 votes. The election was challenged by the first respondent herein on two grounds, the first of which pertains to refusal of two postal votes by the counting officer and the second, regarding the consideration of one tender vote. The election petition was allowed by the learned Munsiff, as per order dated 24.03.2022, from which, both the petitioner and the first respondent herein carried appeals before the District Court, Alappuzha, vide A.S. (Election) Nos.27/2022 and 39/2022. Both the election petitions were dismissed, confirming the order of the learned Munsiff, with the consequence, the first respondent herein was declared as elected.

2. Heard Sri.N.Sugunapalan, learned Senior counsel - instructed by Adv.T.K.Ajithkumar - on behalf of the petitioner and Sri.P.K. Varghese on behalf of the first respondent. There is no representation for the 2nd respondent.

3. Learned Senior counsel would urge that both the Munsiff's Court, as well as the District Court, erred in arriving at a conclusion that the first respondent herein had obtained 434 votes, even if the tender vote was considered in terms of law. Heavy reliance was placed upon the judgment of the Hon'ble Supreme Court in Dr.Wilfred D'Souza vs Francis Menino Jesus Ferrao [(1977) 1 SCC 396] as regards the course to be followed, in a case where tender vote has been cast; and the manner in which it is liable to be treated. Relying on paragraph No.14 of the judgment, it was urged that a tendered ballot paper can be taken into account after establishing two points – namely; (1) the person who cast the initial vote as a voter on a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number, and (2) it was the genuine voter, who marked the tendered ballot paper. If the above points are proved, the consequence stipulated by the Hon'ble Supreme Court in that judgment is that the court would exclude the vote initially cast by the person, other than the genuine voter, from the number of votes of the candidate in whose favour it was cast; and secondly, the court would further take into account the tendered ballot paper in favour of the candidate, in whose favour it was duly marked. On facts, it was pointed out by the learned Senior counsel that the vote cast by Sl.No.196 was wrongly marked as against Sl.No.192 and the candidate as against Sl. No.192 casted her vote subsequently. In such circumstances, the course open, going by the law laid down by Dr.Wilfred D'Souza's case (supra), is to exclude the earlier vote cast by Sl.No.196 (erroneously marked as against Sl.No.192) and to count the vote cast by Sl.No.192 subsequently, which was treated as a tendered vote. If that course is adopted, then the tendered vote, which was proved to be in favour of the first respondent (LDF candidate) will still remain as 432, since the earlier vote cast will have to be excluded from the total votes obtained by the first respondent, the LDF candidate. As an alternative, it was suggested that, out of the total votes of 1031, one vote which was erroneously cast will have to be deleted and then, the tendered vote will have to be counted, in which case also, the total number of votes will be 1031. It is the submission of the learned Senior counsel that after that exercise, a re-counting will have to be effected to find out, who has secured the majority number of votes. In the instant case, neither the learned Munsiff, nor the learned District Judge laboured to find out, as to in whose favour, the first vote was cast. Therefore, the course adopted in