K. Venkataswami, J. - (1.) This appeal under Section 116A of the Representation of the People Act. 1951 (hereinafter referred to as "the Act") is preferred against the judgment and order in Election Petition No. 4 of 1991 of the Kerala High Court. The appellant was the elected candidate to Kerala legislative assembly from No. 11, Edakkad consistuency. The election was held on 12th June, 1991. There were only three candidates in the field. The appellant has polled 54965 votes and the first respondent has polled 54746 votes and the appellant having secured 219 votes more than the first respondent was declared as successful candidate. That declaration was challenged by the first respondent by filing an Election Petition as mentioned above.
(2.) The election of the appellant was challenged by the first respondent on a single ground at the trial on which alone evidence was let in and which found favour with the High Court could be stated by setting out ground (B) as given in the Election Petition: "B, Similarly large number of other void votes have also been illegally cast and received at the time of the polling which took place on the 12th June, 1991 to the Edakkad Assembly Constituency. In the voters' list, the names of some persons who are one and the same but whose names have been entered more than once in the voters' list with intentional slight difference in the House No. with variation in the description of their names, in their father's/husband's name etc. Taking advantage of that position more than one vote has been cast in the names of such persons. Under Section 62 of the Representation of the People Act. 1951, no person shall at any election vote in the same constituency more than once and, if he does so vote, all his votes in that constituency shall be void. The petitioner respectfully submits that persons whose names and other details are mentioned in the list, produced along with as Annexure - B to the petition, have exercised more than one votes in the election aforesaid to the Edakkad No. 11 Assembly Constituency. Since the names and other details of such persons are far too numerous, the petitioner is producing along with the petition a list containing the names and details as Annexure - B to this petition. The reception of the aforesaid votes from the aforesaid persons, was improper and amounted to receiving votes improperly and reception of void votes. More than 1114 votes have been received from the aforesaid persons. Thus about 1114 void votes have been received in the elections to the No. 11 Edakkad Assembly Constituency. Those votes have been counted and taken into account in declaring the first respondent as elected. The petitioner submits that the reception of such void votes has materially affected the results of the elections. The petitioner has reasons to believe that votes that have been cast in the name of those persons whose names appear in Annexure - B have all gone in favour of the first respondent. If those votes are scrutinised, inspected and excluded, undoubtedly it will be revealed that the result of the election in so far as it concerns the first respondent, the rerturned candidate, has been materially affected by reception of void votes, if those votes are excluded undoubtedly the petitoner would be found to have obtained a majority of the valid votes. But for the reception of the aforesaid void votes the first respondent would never have been declared elected, and instead the petitioner would have been declared elected."
(3.) In support of this ground the first respondent (Election Petitioner) has examined as many as 322 witnesses and filed Exhibits numbering about 1293. In the light of the oral and documentary evidence, the learned Judge initially rendered an interim judgment on 10-8-1992 giving a finding as follows: "I find that 269 votes are void under Section 62(4) of the Representation of the People Act. 1951 and I have also found 39 votes have been cast by persons whose names were not included in the electoral roll. These votes were cast by impersonation under Section 62(1) of the Act. These votes must have been accepted as valid votes by the returning officer at the time of counting. This amounts to improper reception of votes as envisaged under Section 100(1) (d) (iii) of the Act. As the first respondent was declared elected by a margin of 219 votes, the declaration of these votes as void and invalid may materially affect the result of the returned candidate. These votes have to be searched out and excluded from the total number of votes." ;