Decided on August 08,1967

N. K. Seshan Respondents


M.MADHAVAN NAIR,J. - (1.) THIS is a petition under S.100(1 )(d )(iii)and(iv)and S.100(1 )(a)of the Representation of the People Act,1951 hereinafter the Act.
(2.) 'Petitioner and respondents 1 to 3 contested for a seat in the Kerala Legislative Assembly from Wadakkancherry Constituency at the General Elections held on 20th February 1967.After scrutiny and counting on the next day the 21st,the Returning Officer rejected 2590 ballot papers as invalid,announced the petitioner and the respondents 1 to 3 to have polled 22173,23857,1099 and 962 votes respectively and therefore declared the 1st respondent to have been duly elected.The petitioner challenges it on the allegations, (1)The counting supervisors rejected as invalid many votes which were validly marked for the petitioner(though they)have no authority to take decisions on the validity of votes. (2)many votes which were polled in favour of the 2nd and 3rd respondents were bundled up along with the votes polled in favour of the 1st respondent, (3)the petitioner 's counting agents could not object to it(the above)in many cases because there was only one counting agent at each table where three counting supervisors and assistants were sorting and counting votes for the different candidates, (4)in bundles on the top of which votes polled in favour of the 1st respondent were placed there were below votes polled in favour of the petitioner, (5)there is every reason to suspect that ballot papers have been removed from the counting table, (6)the votes of those persons who tendered their votes later were cast earlier by those(who)personated them, (7)each elector while entering the polling booth was given two ballot papers,one for the Parliament and another for the Assembly,( and)this new method was responsible for a higher percentage of invalid votes in Kerala than in other States in India(and)a larger number of invalid votes than during the last elections,and (8)the result of the election has been materially affected by improper reception and rejection of votes and by a reception of votes which were void and by non compliance of laws; and prays ( i)that the votes be re -examined and recounted, (ii)that the election of the 1st respondent be declared void,and (iii)that the petitioner be declared as duly elected.
(3.) THE 1st respondent has by a written statement denied the allegations made against his election but has not recriminated under S.97 of the Act. The following 13 issues have been set for trial. 1.Who decided the invalidity of rejected votes,and has he authority to do so ? 2.Was any ballot paper that has been duly marked for the petitioner rejected as invalid 3.Has any ballot paper marked for the petitioner been counted for the 1 st respondent ? Has any ballot paper marked for the 2nd or 3rd respondent been counted for the 1st respondent?;

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