Decided on August 31,1967

K. SEKHARAN NAIR Respondents


- (1.) THE petitioner and respondents Nos. 1 to 3 contested for a seat in the State Legislative Assembly in the general election held on february 20,1957, from the Trichur Constituency. Counting votes on the 22nd february, the Returning Officer rejected 2075 ballot papers as invalid, announced the petitioner and respondents Nos. 1 to 3 to have polled 25547, 26149,1570 and 407 votes respectively, and declared the 1st respondent elected. In this election petition the petitioner prays to declare the election of the 1-st respondent void and himself to have been duly elected, on the following allegations: (1)11. . . . many ballot papers which were validly marked for the petitioner were rejected as invalid votes. . . THE counting supervisors themselves decided whether the votes are valid or (3) "some of the counting supervisors who nursed a grievance against the petitioner on the ground that he was not sympathetic during their strike against the Government allowed votes which are not really mark 1 for the 1st respondent being counted as votes for the 1st respondent. Large number of such votes which were not really votes polled for the 1st respondent happened to be counted as votes in favour of the 1st respondent. (4) "only one counting agent was permitted to be present on one counting table. up and hunting for different candidates. One counting agent of the petitioner on one table could not effectively cheek or scrutinise the sorting, bundling and counting by 3 persons on the same table. (5) "all the ballot papers issued are not found in the ballot boxes. It is passible that ballot papers on which mirks have been made were removed from the counting table. (6) "in the case of persons who tendered their votes they were falsely personated by votes have to be removed and tendered votes have to be counted as valid votes. the Parliament and the other for the assembly. . . Large number of votes have become invalid due adopted in Kerala was illegal and discriminatory. . . THE entire election conducted in this State has to be set aside on that ground alone. (8) "the voters residing at Pattarakkal Junction who were included in Part 30 of the Electoral Roll of the Trichur Assembly constituency, their serial numbers 740 upto 972 in the list of 1964, are not included in the electoral Roll published in 1966. This is an omission (and) a violation of the provisions of Art. 326 of the Constitution of India. . . (and)the Representation of the People Act 1951 and the Registration of Electors r. 1960. THE election residing in the heart of Trichur Town . Almost all the voters thus excluded would have voted for the petitioner. (9) "the result of the election by which 1st respondent was declared elected has been materially affected by improper reception and rejection of the votes and by reception of votes which are void. . . . (and) by non-ccmpliance with the provisions of the Constitution and the representation of the People Act, 1950 the Representation of the People Act, 1951, and the Rules framed thereunder as indicated in the earlier paragraphs. . . and (10) "if the votes are recounted the petitioner would get majority of the valid votes polled at the election. " THE 1st respondent by a written statement contested the petition, denying all the allegations made against his election.
(2.) FIFTEEN issues were settled for trial: 1. Was any written request to recount made by the petitioner's agent in due time? If any such request had not been made, is the petitioner entitled to claim a recount of the ballot papers in this Election petition? 2. Have ballot papers with two marks, one for the 1st respondent and another for the 2nd or the 3rd respondent, been counted as valid votes in favour of the 1st respondent? 3. Have ballot papers marked for the petitioner or for the 2nd or 3rd respondent been counted in favour of the 1st respondent? 4. Was any vote given by false personation? Are the tendered votes valid? In whose favour do they enure? Is the petitioner entitled to a recount of all the ballot papers? 5. Has any ballot paper validly marked for the petitioner been rejected? 6. Who declared the invalidity of the rejected ballot papers; and did he have the authority to do so? 7. Has the result of election been materially affected by any improper reception or rejection of votes or by non-compliance of the laws? 8. Was any ballot paper on which marks have been made removed from the counting table? 9. Have the citizens residing at Patturakkal Junction of the Trichur Assembly Constituency entitled to vote not been included in the electoral roll of the concerned Constituency and has such omission affected the result of the election? Is it open to the petitioner to urge that question in this Election Petition? 10. Whether the giving of two ballot papers simultaneously was not lawful. Was it discriminatory and violative of Art. 14 of the Constitution and has it materially affected the result of the election? Is the question relevant in this petition? 11. Is the petitioner entitled to challenge the entire election to the State Legislative Assembly? 12. Is the election of the 1st respondent void? 13. Is the petitioner entitled to be declared elected? 14. To what relief is the petitioner entitled? The petitioner examined two of the residents of the patturakkal Junction as P. Ww. 1 and 4, the electoral registration officer, trichur as P. W. 2, three of his counting agents as P. Ww. 3,5 and 6, and himself as P. W. 7, and marked the concerned part of the electoral roll for 1964 as Ext. P1 and that for 1966 as Ext. P2. The 1st respondent examined himself as R. W. 1. Issue No. 1. There is no case that any application to recount under R. 63 (2) of the Conduct of Election Rules, 1961, has been made; but as I have already held in Election Petition No. 3 of 1967, the absence of such an application will not be a legal bar to a motion for recount in this court on the petitioner's proving the return to be so erroneous as to be unreliable. The issue is found accordingly.
(3.) ISSUES Nos. 2 and 3. The allegations which gave rise to these ISSUES are general and vague. No material facts in relation thereto have been given in the petition or in the evidence. It cannot be said that a ballot paper with two marks against names of two candidates is always invalid; for, it must be valid if one of the marks can be shown to be an impression or smudge caused by wrong folding of the paper, and must be counted for the candidate indicated by the original mark on it. The ballot is the preference or choice of a candidate indicated by the voter. Any other mark on the ballot paper of which he was not aware cannot be his vote or avoid the vote he has recorded. The general statement, without details or particulars, that votes which are not really marked for the 1st respondent have been counted as his votes is not apt to carry any conviction. No specific instance of any ballot paper marked for the petitioner or for the 2nd or the 3rd respondent having been counted for the 1st respondent is alleged. Obviously, these allegations have been made to support the petitioner's claim to a recount As has been held in Dr. Jagjit Singh v. Giani Kartar Singh AIR. 1966 SC. 773, Para. 31 to 34 vague and general allegations would not satisfy the requirements of S. 83 of the representation of the People Act, 1951, or justify a claim to recount. In the aforesaid case the Supreme Court has cautioned: ". . . care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. " The issue goes against the petitioner. Issue No. 4. None of the persons who gave tendered votes at the poll has been examined in this case to prove his identity with the name and description in the electoral roll. No evidence on the allegation of prior voting by false personation has been given. The allegation is not substantiated.;

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