Improper rejection of postal ballots due to polling officers' mistakes cannot be attributed to voters, affecting election results.

ORDER :

C.S.SUDHA, J.

The petition has been described as one filed under Sections 80, 80A and 81 read with Section 100(1)(d)(iii), Section 100(1)(d)(iv) and Section 101 of the Representation of People Act, 1951 (the Act).

2. The election petitioner and the respondents on 06/04/2021 contested the general election to the 15th Kerala Legislative Assembly from 038-Perinthalmanna Assembly Constituency, the result of which was declared on 02/05/2021 and 03/05/2021. The first respondent was declared the returned candidate by a majority of 38 votes. The election of the first respondent and the result declared is challenged on the grounds under Section 100(1)(d)(iii) and Section 100(1)(d)(iv) of the Act. The challenge is on the ground that 348 postal ballots of the Absentee Voters Senior Citizens (AVSC); Absentee Voters Physically Disabled (AVPD) and Absentee Voters Covid suspected and affected persons (AVCO) were improperly rejected, materially affecting the result of the election as far as the first respondent is concerned.

2.1. According to the petitioner, after the election, counting was conducted on 02/05/2021 at GGV HSS, Perinthalmanna. The postal ballots were counted before the Electronic Voting Machine (the EVM) votes were counted. Six tables were arranged for counting the postal ballots. PW8 to PW13, the counting agents of the election petitioner, were present at the tables. The election agent of the election petitioner, namely, PW4, was also present at the counting center and was supervising the functioning of the counting agents. During the course of counting, 348 postal ballots of AVSC, AVPD and AVCO were kept aside alleging that there were no proper attestation of Form 13A declaration by the polling officers concerned and that the serial number of the postal ballots in Form 13A declaration and Form 13B cover were defective. The counting agents of the election petitioner present at each table were unable to notice any defects in the Form 13A declaration or in the serial number of the ballots entered in Form 13A or Form 13B. The counting agents were not permitted to verify the Form 13A declarations or Form 13B covers. Though the counting agents objected to the keeping aside of the said postal ballots of AVSC, AVPD and AVCO and also sought to know the reasons for the same, the Returning Officer/Assistant Returning Officer (RO/ARO) were in haste and without disclosing the reasons, kept them in a separate box. The counting agents were informed that their request would be considered after counting of all the votes including the votes cast through EVM was completed. The election agent submitted Ext.A3 request to the RO, namely, PW1, requesting him to consider the 348 postal ballots which had been kept aside. The RO gave Ext.A2 reply stating that 348 postal ballots were rejected for noncompliance of Rules 24 to 27 of the Conduct of Elections Rules, 1961 (the Rules). The statement in Ext.A2 reply that before the declaration of results, the reasons for rejection had been re-verified in the presence of counting agents is false and incorrect. They were not verified or re-verified in the presence of the counting agents or the election agent of the petitioner. Neither the election agent nor the counting agents were ever informed about the re-verification of the 348 postal ballots or the reason(s) for their rejection.

2.2. Any defect(s) in the postal ballots of AVSC, AVPD and AVCO due to the action/inaction or violation of any statutory duties of the polling officers cannot be attributed to the voter and made a ground for rejection of the votes. Ext.A1 is the guidelines issued by the Election Commission (the EC) regarding the procedure to be followed in the casting of vote by the absentee voters. However, none of the voters had been briefed by the polling officers concerned about the procedure of voting or the formalities to be observed as provided in the guidelines. The polling officers were supposed to only brief the voters regarding the ma