Kunji Thomman v. Kunji Marakar Alikunji — 1954 DIGILAW 108 (KER)

Judgment :- 1. The petitioner and the 1st respondent were candidates for election from the Village Cutcherry Ward (No. 3) of the Puthenchira Panchayat. The Election Officer found that both of them got an equal number of votes, namely, 361 each, drew lots as provided in R. 44 of the Travancore-Cochin Panchayat Rules, 1951, and declared the petitioner to have been elected from the constituency. 2. The 1st respondent filed an Election Petition, No. 2 of 1953 and succeeded in securing the seat. On a careful review of the evidence the Election Commissioner came to the conclusion that the name of PW. 3 had been entered twice on the Electoral Roll, and that he voted twice at the polling on 6.5.1953, first as voter No. 316 in favour of the 1st respondent and then as voter No. 693 in favour of the petitioner. He also held that the vote cast as voter No. 316 on ballot paper No. 2890 in favour of the 1st respondent was valid and that the second vote, namely the vote in favour of the petitioner, had to be discarded. As a result there were, according to him, 361 valid votes for the 1st respondent as against 360 for the petitioner and he declared the petitioner's election to be void under R. 78(2) and the 1st respondent as duly elected under R. 79(1) of the Travancore-Cochin Panchayat Rules, 1951. 3. The only question that arises for decision, and the only question that was argued on behalf of the petitioner, is that in a case of plurality of voting both the votes should be discarded and not merely the second vote as has been done by the Election Commissioner. I am aware of no authority, and none was cited at the Bar, which has held the first vote also to be void in the absence of a statutory provision directing that both the votes should be discarded. 4. Specific provision in that behalf exists, for example, in S.61(4) of the Representation of the People Act, 1951 (Central Act XLIII of 1951) which provides: "No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for that constituency more than once, and if he does so vote, all his votes in that constituency shall be void". There is no such provision in the Travancore-Cochin Panchayat Act, 1951, or the rules framed thereunder and in the absence of such a provision the decision of the Election Commissioner should be considered as correct and as in no way liable to be set aside. 5. S. 36 of the Corrupt Practices Act, 1883, provides: "Every person guilty of a corrupt or illegal practice, or of illegal employment, payment, or hiring at an election, is prohibited from voting at such election, and if any such person votes, his votes shall be void". and in 4 O'M & H 34 (45) construing the words "if any such person votes, his vote shall be void" it was said: "it does not say all votes that he may give shall be void, but in my opinion all votes would be void if they were given with a corrupt mind, for instance if a man deliberately intending to do wrong, went and gave the first vote intending to give a second vote, and it could be proved, then I should say that the word 'void' would be applicable to both votes". This if I may say so with respect, is nothing more than a sound interpretation of the meaning and intendment of the section concerned. It is no authority for the proposition that when there is no statutory provision both the votes should be discarded. 6. Apart from this, even in the presence of a provision similar to S. 36 of the corresponding provision in the Representation of the People Act, 1949 (12 and 13 Geo 6 Ch. 68)S.144(2): "If any person who is guilty of a corrupt or illegal practice or of illegal payment, employment or hiring at an election votes at the election, his vote shall be void". In the Travancore-Cochin Panchayat Act, 1951, or the Travancore-Cochin Panchayat Rules, 1951 the first vote of PW. 3 will not be liable to be discarded. There is no finding that he had a corrupt mind when he voted on earlier of the two occasions on 5.5.1953 and the petitioner's own contention in his written statement before the Election Commissioner was only that the second of the two votes - not the first should not be taken into account. 7. There is no finding that he had a corrupt mind when he voted on earlier of the two occasions on 5.5.1953 and the petitioner's own contention in his written statement before the Election Commissioner was only that the second of the two votes - not the first should not be taken into account. 7. Most of the cases that are normally cited whenever a case of voting comes up for consideration, namely, the case mentioned above;1 O'M. & H.156; 4 O'M. & H. 32 and 171 (174); 6 O'M & H. 235 and 289; Hammond's Election Cases 267; and Sen & Poddar's Election Cases 746 (749) were cited before me. There is nothing in these cases which militates against the view adopted by the Election Commissioner. 8. In the case reported in Hammond's Election Cases 267, a voter had voted twice in favour of the respondent and what was done was to strike off one of those votes, and not both of them, as invalid. In the second of the two Indian cases both the votes were declared to be invalid but that was on the basis of a specific statutory provision, clause 7(3) of the Government of India (Provincial Elections) Corrupt Practices and Election Petitions) Order, 1936, to the effect that if a person (not being entitled so to do) vote more than once at the same election, all his votes shall be deemed to be void. 9. Mr. K.P. Abraham, learned counsel for the petitioner, drew my attention to that portion of R. 82A of the Travancore-Cochin Panchayat Rules, 1951, which provides that the application by a person at an election "for a ballot paper in his own name when, by reason of the fact that he has already voted in the same or some other ward he is not entitled to vote" shall be deemed to be a corrupt practice. The question that arises for decision in this petition, however, is not whether PW. 3 was guilty of a corrupt practice when he voted for a second time but whether not merely his second vote, but his first vote also, should be considered as void. 10. I have no doubts that in the absence of a statutory provision the Election Commissioner was justified in not discarding the first vote of PW. 3. 3 was guilty of a corrupt practice when he voted for a second time but whether not merely his second vote, but his first vote also, should be considered as void. 10. I have no doubts that in the absence of a statutory provision the Election Commissioner was justified in not discarding the first vote of PW. 3. It follows that this petition should fail and I dismiss the same with costs, Advocate's fee Rs. 100/- for each of the two respondents. Dismissed.