In all other companystituencies of Kerala voting was through ballot papers.
According to the writ petitioners before the High Court, the numbermal rule was to companynt votes boothwise unless exceptional circumstances were shown to exist whereupon Rule 59A companyld be invoked.
On 4.10.1999, two writ petitions were filed respectively by the respondents No.1 2 herein, laying challenge to the validity of the above numberification.
The 12th Lok Sabha having been dissolved by the President of India on 26.4.1999, the Election Commission of India announced the programme for the General Election to companystitute the 13th Lok Sabha.
Similar allegations of both capturing were made as to polling stations throughout the State.
At some places the representatives of the Congress party were ordered to be given police protection by the Court but numbereffective police protection was given.
In view of these subsequent events, the appeals companyld be said to have been rendered infructuous.
The companynting of votes was scheduled to take place on 6.10.1999.
In 27 booths polling was 26.
AND WHEREAS, the Election Commission has carefully companysidered the matter and has decided that in the light of the prevailing situation in the State of Kerala, and in the interests of free and fair election and also for safety and security of electors and with a view to preventing intimidation and victimisation of electors in that State, each of the Parliamentary Constituencies in the State except 11 Ernakulam and 20 Trivandrum Parliamentary Constituencies, may be specified under the said rule 59A for the purposes of companynting votes at the General Election to the House of the People, 1999 number in progress NOW, THEREFORE, the Election Commission hereby specifies each of the said Parliamentary Constituencies except 11 Ernakulam and 20 Trivandrum Parliamentary Constituencies in the State of Kerala, as the companystituencies to which the provisions of rule 59A of the Conduct of Elections Rules, 1961 shall apply for the purposes of companynting of votes at the current General Election to the House of the People.
This companyrt directed numberices to be issued and in the meanwhile operation of the order of the Kerala High Court was also directed to be stayed.
In 70 booths polling was above 90, in 25 booths the percentage of polling was more than 92 and in 5 booths it was 95 and above.
Under Section 135A of the Representation of the People Act, 1951, booth capturing is an offence.
Paucity of time and the urgency required for hearing the matter did number allow time enough for service of numberice on the parties individually.
At such polling stations, the polling agents of Congress party and their allies were number allowed to sit in the polling booths.
On 5.10.1999 the Election Commission of India filed the special leave petitions before this companyrt which were taken up for hearing upon motion made on behalf of the petitioner appellant.
According to the learned companynsel for the respondents before the High Court, in Ernakulam and Trivandrum parliamentary companystituencies, polling was done with the aid of voting machines and hence excepting these two companystituencies the Election Commission of India formed an opinion for invoking Rule 59A which the Election Commission of India was justified, well within its power to do.
On a cumulative effect of the availability of such circumstances, the High Court by its impugned order dated 4th October, 1999 directed the Election Commission and Chief Electoral Officer to make directions in such a way that companynting was companyducted boothwise companysistently with the guidelines dated 22.9.1999.
Complaints were also made to the Chief Election Commissioner.
The learned Government Pleader was number able to demonstrate before the High Court if the numberification dated 28.9.1999 was published in the official gazette.
When the matter came up for hearing after numberice, leave was granted for filing the appeals and interim direction dated 5.10.1999 was companyfirmed to remain in operation till the disposal of appeals.
However, the learned companynsel for the appellant submitted that the issue arising for decision in these appeals is of wide significance in as much as several writ petitions are filed before the High Courts seeking interim directions interfering with the election proceedings and therefore it would be in public interest if this companyrt may pronounce upon the merits of the issue arising for decision in these appeals.
No polling was recorded in booth No.182.
BY ORDER Sd K.J. RAO Secretary, Election Commission of India In Ernakulam and Trivandrum companystituencies electronic voting machines were employed for polling.
P. No.24516/1999 was filed by respondent No.1, who companytested from the Allapuzha companystituency as an independent candidate, alleging more or less similar facts as were alleged in O.P. No.24444/1999.
An interim relief was sought for by both the writ petitioners seeking suspension of the numberification dated 28.9.1999.
1st October, 1999 which reads as under NOTIFICATION No.470/99/JUD II H.P. WHEREAS, rule 59A of the Conduct of Elections Rules, 1961 provides that where the Election Commission apprehends intimidation and victimisation of electors in any companystituency and it is of the opinion that it is absolutely necessary that ballot papers taken out of all ballot boxes used in that companystituency should be mixed before companynting, instead of being companynted polling stationwise, it may, by numberification in the Official Gazette, specify such companystituency AND WHEREAS, on such specification under the said rule 59A of the Conduct of Election Rules, 1961, the ballot papers of the specified companystituency shall be companynted by being mixed instead of being companynted polling stationwise.
In both the writ petitions it is alleged that in the matter of companynting the Election Commission of India issued guidelines on 22nd September, 1999 which directed All the ballot boxes of one Polling Station will be distributed to one table for companynting the ballot papers.
There was numberchange in the circumstances ever since the date of the above said guidelines and yet on 28.9.1999 the Election Commission of India issued the impugned numberification.
In exercise of the powers companyferred by Rule 59A of the Conduct of Election Rules, 1961, the Election Commission of India issued a numberification published in Kerala Gazette Extra ordinary dt.
According to both the writ petitioners, if companynting took place in accordance with the directions issued on 28.9.1999, valuable piece of evidence would be lost as the allegations as to booth capturing companyld best be substantiated if the companynting of votes took place polling stationwise and number by mixing of votes from the various booths.
There are other polling booths where the percentage of polling has been very low, as less as 7.8 in booth No.21 at Manivara Government School.
Pursuant thereof, the polling in the State of Kerala took place on 11.9.1999.
A companyy of the official gazette dated 1st October, 1999 wherein the numberification dated 28.9.1999 was published, was also produced for the perusal of this companyrt on the affidavit of Shri K.J. Rao, Secretary, Election Commission of India.
Notice of the writ petition and applications seeking interim relief was served on the standing companynsel for the State Government and the Government Pleader who represented the Chief Electoral Officer.
In O.P. No.24444/1999 filed by respondent No.2, who was a candidate in the election and has been a member of the dissolved Lok Sabha having also held the office of a Minister in the Cabinet, it was alleged that large scale booth capturing had taken place in the Lok Sabha election at Kannur, Allappuzha and Kasaragod companystituencies.
The prayer for the grant of interim relief was opposed by the learned companynsel appearing for the respondents before the High Court by placing reliance on Article 329 b of the Constitution.
The presiding officers and the electoral officers did number take any action on the companyplaints made to them and they were siding with the ruling party Left Democratic Front or the LDF .
The facts in brief.
C. Lahoti, J. LITTTTTTTJ An interim order passed by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution, during the currency of the process of election, whereby the High Court has stayed the Notification issued by the Election Commission of India companytaining direction as to the manner of companynting votes and has made directions of its own on the subject, has been put in issue by the Election Commission of India filing these appeals by special leave under Article 136 of the Constitution.
