P R FRANCIS Vs. A V ARYIAN
HIGH COURT OF KERALA
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(1.) This election petition is to declare the election of the 1st respondent void and the petitioner elected.
(2.) The petitioner and respondents 1 and 2 contested for a seat in the Kerala Legislative Assembly from the Ollur Constituency in the general election held on February 20, 1987. After counting of votes the next day the Returning Officer rejected 1763 ballot papers as invalid and announced them to have polled 24, 421; 24, 569 and 1,025 votes respectively and declared the 1st respondent elected. The petitioner challenges the election on the following allegations:
(1) "the chief counting agent of the petitioner applied in writing to the Returning Officer to recount the votes polled" but he "read through the same and returned it. ... for getting the petition typed and before the typed copy could be brought declared the 1st respondent duly elected:
(2) "many ballot papers which were validly marked for the petitioner were rejected as invalid" by the counting supervisors finally, though they "have no jurisdiction to do so";
(3) many ballot papers having had "two marks, one on the symbol of the 1st respondent and the other on the symbol of the 2nd respondent." were counted by the counting supervisors as votes of the 1st respondent in spite of opposition by the counting agents of the petitioner;
(4) "many votes marked for the petitioner and the 2nd respondent were wrongly included in the bundle of the 1st respondent;" and though "some such cases were detected and the votes taken out." as the petitioner was allowed only one counting agent at one table where three officers were sorting, counting and bundling simultaneously" a very effective check was not possible:"
(5) the counting went on from 8 a.m. to 8 p.m. without a break "either for food or for answering the calls of nature and that resulted in miscounting of votes:"
(6) there were opportunities for removing ballot papers from the polling station, and a large number of ballot papers "brought outside the polling booth and handed over to agents of the 1st respondent for Improper motives ... were marked outside and taken back to the polling station through the trusted persons of the 1st respondent and put into the ballot boxes;"
(7) votes marked for the petitioner have been removed from the counting table:
(8) there are 51 tendered votes by real electors in the constituency who had been "falsely personated by the workers of the 1st respondent;" which tendered votes have to be counted for the petitioner;
(9) "sorted bundles of votes for one candidate were misplaced with that of the other candidate".
(10) a large number of postal votes were illegally rejected.
(11) as the margin of votes between the petitioner and the 2nd respondent is very narrow, a recount of votes should have been ordered by the Returning Officer:
(12) the simultaneous issue of two ballot papers, one for the Assembly and the other for the Parliament, caused confusion in the voters and wrong marking of their ballots and this novel method which was adopted in Kerala alone was discriminatory and therefore the entire election conducted in the State has to be set aside:
(13) the result of the election had been materially affected by improper reception and rejection of votes and by reception of votes which are void as also by non compliance of the Act and the Rules and the provisions of the Constitution; and
(14) if votes are recounted the petitioner would get majority of the valid votes polled.
(3.) By a written statement the 1st respondent denied all the allegations made against his election and contended that the petitioner having not made an application in time for recount before the Returning Officer, cannot claim it in election petition; but has not recriminated under S.97 of the Representation of the People Act, 1951 hereafter 'the Act'.;
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