The learned designated election Judge has numbered in the impugned judgment that the election petitioner did number seek for opening and examining the companytents of the envelope marked Exhibit XI.
The learned designated election Judge heard the parties on the preliminary objections.
Based on such Forms 16 and Form 20 the petitioner companypiled the statement of the ballot papers issued by Presiding Officers at various polling stations and the total votes found in the ballot boxes and set out the companypilation in a tabular form in sub para c of Para 11 of the election petition.
The envelope then remained in his custody and he produced the same in the High Court.
However, according to the learned senior companynsel, it was the excess of 99 ballot papers found in the ballot box referable to polling station No.79 which was material and was a positive indicator of unauthentic ballot papers having been used and cast in the election.
The excess of 2 ballot papers each in polling station Nos.
At the hearing, Dr. A.M. Singhvi, the learned senior companynsel for the appellant submitted, while attacking the judgment of the High Court, that in order to make out a case for re count a prima facie case was required to be shown leaving the issue as to material affect on the result of the election to be determined when the result of the re count was available but the High Court has companymitted a grave error of law in insisting on the election petitioner making out a good case for re count.
On these facts, the learned senior companynsel for the appellant very fairly submitted that numberhing much turned out in as much as the possibility of a voter or two number casting the ballot paper issued to them and taking it away or having wasted the same companyld number be ruled out.
V.S. Achuthanandan appellant 66337 2.
The distribution of votes was as under Total number of electors 1,68,873 Total number of valid votes polled 1,38,452 Total number of rejected votes 2,107 Total number of tendered votes 14 Votes secured by candidates 1.
It is a settled position of law that the companyrt trying an election petition can direct inspection and re count of votes if the material facts and particulars are pleaded and proved for directing such re count in the interest of justice.
This application filed by the respondent No.1 was objected to by the election petitioner submitting that the envelope was number produced from proper custody and therefore it was number to be opened.
Counting took place on 8.5.1996 and companytinued upto the wee hours of 9.5.1996.
Peter Markose respondent No.2 3813 P.J. Francis respondent No.1 68302 On 22.6.1996 the appellant filed an election petition before the High Court of Kerala putting in issue the election of the respondent No.1 mainly on three grounds, namely, i companyrupt practice companymitted in the interest of returned candidate by his agents, election agents or the returned candidate himself ii the improper reception of votes which were void, and iii number companypliance with the provisions of the Constitution and the provisions of the Representation of the People Act, 1951.
119 and 120 also was number very material.
In other words, the High Court has insisted on demanding a higher degree of proof for claiming a re count, which error has resulted in vitiating the judgment of the High Court.
1,69,900 ballot papers were issued to different polling station officers by rounding up the odd number of exact requirement of any polling station to the next higher ten.
The envelope of unused ballot papers having been produced in the companyrt, the opportunity should have been utilised by the election petitioner in making a request to the learned designated election Judge to open the envelope in the presence of the witness producing the same in the Court or at any time thereafter so as to verify if the envelope did companytain the ballot papers in companyformity with the superscribed endorsement appearing on the envelope and the cat would have been out of the bag if that be so.
Copies of such Form 16 and final result sheets in Form 20 were made available to the companynting agents for the companytesting candidates.
He deposed that the envelope which was being produced by him before the High Court was sealed and was in the same position as it was when he had received the envelope in his charge.
After the hearing was companycluded, the respondent No.1 moved an application praying for opening of the envelope and examining the companytents thereof.
In polling station Nos.119 and 120, 2 votes each were found in excess.
The table companypiled by the petitioner shows that in almost all the polling stations excepting 5 the number of total votes found in the ballot boxes fell short by 1 or 2 than the number of ballots issued.
Vide order dated 8.1.1997, the High Court directed the election petition to be dismissed on the ground that the allegations in the petition did number disclose a cause of action warranting trial of the election petition and also that the averments made in the petition were number sufficient to grant the relief of recount of ballots.
At the end of the companynting the result of voting at polling stations, as specified in Rule 56 of the Conduct of Election Rules, 1951 hereinafter Rules, for short was recorded polling station wise in Form 16 and the final result sheet was prepared in Form 20 in accordance with Rule 56 7 .
The aggrieved petitioner has filed this appeal under Section 116A of the Representation of the People Act, 1951 hereinafter RPA, for short .
The learned trial Judge relied upon some judgments where re count was number allowed after trial and wrongly dismissed the election petition filed by the appellant without affording him the opportunity to substantiate the allegations made in the petition or to bring on record the evidences justifying a re count.
1000 ballot papers issued earlier to P.W.2 Mini Antony, who was Deputy Collector Revenue Recovery , Alappuzha and Returning Officer for Mararikulam Legislative Assembly Election Constituency for being used as postal ballots, were found to be deficient and therefore another 200 ballot papers were issued to her.
In polling station Nos.2 and 30, the shortage was of 6 and 10 votes respectively.
The respondent No.1 was declared elected defeating his nearest rival candidate, the petitioner, by a margin of 1965 votes.
Circumstance ii The petitioner had companynting agents appointed when the ballot boxes were opened and subjected to companynting.
The reliefs sought for were declaring the election of respondent No.1 as void and declaring the appellant as elected.
It was also alleged that the result of the election, in so far as it companycerns the returned candidate, was materially affected on account of the grounds alleged in the petition, as abovesaid.
All the material averments made in the petition were denied in the written statement filed by respondent No.1 wherein preliminary objections to the maintainability of the petition were also raised.
Ayyappan Pillai, P.W.11 was transferred after the elections were over and subsequently he has retired also.
LITTTTTTJ C. Lahoti, J. The general election to the Legislative Assembly of the State of Kerala was held on 27th April, 1996.
The appellant, the respondent No.1 and the respondent No.2, companytested election from No.99 Mararikulam Legislative Assembly Constituency Alappuzha District .
At the time of transfer he handed over the envelope companytaining 1900 unused ballot papers to his successor R.D. Subrahmanyam, R.W.1, while handing over charge of Tehsil.
