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2002 DIGILAW 91 (KER)

T. A. Ahammed Kabeer v. A. A. Azeez

2002-02-06

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R. Hariharan Nair, J. Issues 19 & 20: These are considered together for the sake of convenience. According to the declaration of results the first respondent has won with a majority of 21 votes; the votes secured by the 1st respondent being 55638 and those secured by the petitioner being 55617. The decoding of the disputed 28 votes was effected on 5.2.2002. (See the minutes kept separately). The details of vote position that emerged from decoding is available in Ext.C11 series marked on the same day. The procedure followed in the matter of decoding was spoken to by CW2 expert also today. His evidence conforms to the requirements of Section 65B of the Indian Evidence Act and during hearing no reason at all was pointed out by either side as to why the result of decoding of 28 votes evidenced by Ext.C11 series should not be admitted in evidence and considered. The cumulative effect of Ext.C11 series is that out of the impugned 28 votes which had been taken into account by the Returning Officer 21 votes secured by the first respondent have to be ignored as void. That sets off the majority declared in favour of the first respondent. 2. The decoding also shows that out of the remaining 7 votes impugned by the petitioner, the vote relating to Ext.X34(b) (see Ext.C11(h)) has gone in favour of candidate No. 3 (second respondent herein) and that the votes exercised by voters vide Exts.X32(g), X30(a), X46(b), X46(a), X25(a) and X38(a) entries in the Register of Voters which are indicated in Exts.C11(a), C11, C11(b), C11(g) and C11(k) decoding reports had actually gone in favour of the petitioner himself. They are also void votes on the petitioner's own showing. But then Ext.X18 tendered vote has gone in favour of the petitioner. If the aforesaid six votes are taken as void and credit is given for Ext.X18 vote, the consequence would be that the petitioner would loose the election by a margin of five votes. Faced with this situation the petitioner has now taken up a contention that the six votes aforementioned are not void in so far as they are not impugned as void in the recrimination petition filed by the first respondent. Faced with this situation the petitioner has now taken up a contention that the six votes aforementioned are not void in so far as they are not impugned as void in the recrimination petition filed by the first respondent. Counsel submits that in spite of the fact that 6 votes have gone in favour of the petitioner, they should not be taken into account while settling the tally as they were not impugned by the first respondent in his recrimination petition. In this regard case law was also relied on. 3. I find no merit in the said contention of the petitioner. This Court had made clear in paragraphs 60, 71 and 83 of the judgment pronounced on 9.1.2002 that after decoding necessary adjustments would be made regarding all the 28 votes. That includes the said 6 votes as well. Ext.X18 tendered vote has also to be given credit. There is no reason to take a different stand at this stage. More over the prohibition contained in Section 97 of the Representation of Peoples Act 1951 relied on by the petitioner is only against reception of evidence from the returned candidate in the absence of any recrimination petition. First of all, in the instant case there exists a valid recrimination petition filed by the first respondent. That apart, I find nothing in Section 97 which stands in the way of ignoring the votes which are found to be void even on the showing of the petitioner himself, i.e. without the aid of any recrimination petition. On evidence I had already found in the relevant paragraphs of the judgment, mentioned supra that the petitioner has established the fact that the votes covered by Exts. X32(g),X30(a), X46(b), X46(a), X25(a) and X38(a) are void. It necessarily follows that the petitioner cannot take shelter under Section 97 to contend that those votes are really valid. The petitioner cannot be allowed to blow hot and cold. He cannot wriggle out of the situation created by himself by pleading and proving that the aforesaid six votes are in fact void. A void vote means it was a vote that was never in existence at all. The petitioner cannot seek to resuscitate or resurrect the said 6 votes. 4. Arun Kumar Bose v. Mohd. He cannot wriggle out of the situation created by himself by pleading and proving that the aforesaid six votes are in fact void. A void vote means it was a vote that was never in existence at all. The petitioner cannot seek to resuscitate or resurrect the said 6 votes. 4. Arun Kumar Bose v. Mohd. Furkan Ansari & others (AIR 1983 sc 1311) and Bhag Mal v. Ch.Prabhu Ram & others (AIR 1985 SC 150) cited by the petitioner were cases where there was in fact no recrimination petition and evidence was sought to be relied on without any such recrimination petition to challenge the possibility of the petitioner being declared as the successful candidate. In the first case aforementioned, it was declared that in the absence of a recrimination petition conforming to the requirement of Section 97 of the Act, the appellant was not entitled to combat the claim of the election petitioner on the ground that if the remaining rejected ballot papers had been counted, the election petitioner would not have been found to have secured the majority of the valid votes. The facts of the case were different. Unlike the said case here is a case where the petitioner's own evidence shows that the six votes aforementioned are void and hence the said decision cannot help the petitioner. 5. The second case (Bhag Mal) relied on by the petitioner was one where there was improper rejection of ballot papers and the result of the returned candidate was found to be materially affected. The question was whether a re-counting was to be done in the absence of a recrimination petition. The majority in the Bench found that if the returned candidate does not recriminate as required by Section 97, then he cannot make any attack against the alternative claim made in the petition. In such a case an enquiry would be held under Section 100 so far as the validity of the returned candidate's election is concerned. If as a result of such enquiry a declaration is made that the election of the returned candidate is void, then the Tribunal should proceed to deal with the alternative claim; but in doing so, the returned candidate would not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate. I respectfully follow the said decision in so far as it provides that in the absence of any recrimination petition the successful candidate cannot adduce evidence to show that the petitioner cannot be declared as successful in the election. But then in the present case there is a recrimination petition. Secondly, even without the aid of any evidence from the first respondent there exists the evidence of the petitioner himself to show that the six votes aforeroentioned are really void. In such circumstances I do not think that there is any merit in the contention of the petitioner based on the above decisions. 6. I shall now consider the merit of the recrimination petition filed by the first respondent which question will arise in case the finding of this Court regarding invalidity of the 6 votes is reversed in appeal by accepting the technical stand of the petitioner based on Section 97. in that case the petitioner will have a lead of one vote over the 1st respondent and the merits of the recrimination petition will assume significance. There was specific allegation therein with regard to the validity of votes of Naseema Beevi, Aliyar and George, which are covered by Exts.X75(a), 75(b) and 75(c) entries in the Register of voters, in paragraphs 101 and 102 of the judgment of this Court dt. 9.1.2002 it was found that the said three votes were obviously received in an improper manner and that after decoding necessary adjustments would be made based on the details divulged therein as regards the correct number of votes. The contents of Ext.C11 (n) decoding report shows that all the said three votes have gone in favour of the present petitioner. They are void votes. The result then would be that the number of votes that the petitioner has obtained has to be reduced by 3 and then again the first respondent will have a lead of two votes. 7.At the time when decoding of the aforesaid three votes was about to be made, learned counsel for the first respondent had submitted that the decoding of those votes might be deferred in so far as the aspect of recrimination would arise only where the petitioner has established the possibility of his being declared as the successful candidate through his own evidence. In the order dt. In the order dt. 5.2.2002 I found that the decoding need not be deferred as it would cause inconvenience and that no prejudice would be caused by continuing the decoding operation with regard to the aforesaid three votes also. It was also made clear that the data so collected could be used in case there arise need to rely on the said data for granting the reliefs ultimately due to the petitioner. It was also clarified that decoding of those 3 votes would be subject to the right of the first respondent to challenge the data and the reliefs to be granted to the petitioner based on Section 97 of the R .P. Act, 1951 at the appropriate stage. No estoppel arises from the said stand of the first respondent. 8. In the above circumstances I am of the view that the three votes covered by Ext.C11(n) also can be taken into account in case the petitioner's stand that in the absence of recrimination the six votes covered by Exts.X32(a), 30(a), 46(b), 46(a), 25(a) and 38(a) cannot be taken as void. Even in that case in view of the invalidity of the three votes covered by Ext.C11(n) the first respondent can be seen to be entitled to retain his seat. 9.I find that the correct number of votes secured by the first respondent as a result of the implementation of the results of decoding would be 55617 and the correct number of votes secured by the petitioner is only 55612. In case the plea of the petitioner regarding validity of the 6 votes is accepted and the recrimination is also taken into account, then also the election of the first respondent is not liable to be declared invalid. Found accordingly. 10. Issue No. 23 I have already found under issue No .19 and 20 that the petitioner has failed to establish that he has secured more votes than the first respondent, who has already been declared as the successful candidate, in such circumstances the petitioner is not entitled to get any relief in the election petition. The election petition is accordingly dismissed with cost of Rs.l0,000/- 11. The election petition is accordingly dismissed with cost of Rs.l0,000/- 11. The Registrar shall intimate the substance of this decision to the Election Commission and to the Speaker of the Kerala Legislative Assembly and shall send to the Election Commission an authenticated copy of this decision as soon as possible, as required under Section 103 of the R.P. Act, 1951. Before parting with the case I deem it fit to place on record my appreciation to the counsel for either side who helped to maintain calm and discipline in the Court throughout the lengthy trial as also during the decoding operations and in the hearings that took place at various stages and for enabling disposal of the case within the minimum time possible. Appreciation is due to the Election Commission and to its Standing counsel also for the perfect and efficient arrangements they made for the decoding operation which is said to be the first of its kind to be performed in any of the High Courts in this country.