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2006 DIGILAW 666 (KER)

Jameela Ibrahimkutty v. Selmath

2006-10-09

M.SASIDHARAN NAMBIAR

body2006
Judgment :- An unsuccessful Candidate to Ward No. II of Vengola Gramapanchayat in the election conducted on 24.9.05 is the petitioner. Respondent was the Successful Candidate. Petitioner filed O.P. (Ele.) 4/05 before Election Tribunal (Munsiff Court, Perumbavoor) to set aside the election of respondent. That petition was filed only under section 102 (1) (d) (iv) of Kerala Panchayat Raj Act. The case of the Petitioner was that at the time of counting, out of 851 votes polled only 850 votes were in the ballot box and therefore one vote was missing and after counting respondent obtained 392 votes and petitioner 391 votes, the difference being only one vote. It was contended that under section 78 of the Kerala Panchayat Raj Act if at the time of counting, a ballot paper is found lost or damaged and if the result of the election will be materially effected if the lost ballot paper is also taken into account, the Returning Officer has to report the matter to the Election Commissioner and the counting has to be stopped. As the missing ballot paper is crucial repelling should have been ordered and as there is violation of Section 78 which materially effect the result of the election, the election, is to be set aside. As the petitioner did not seek a further declaration of her election an application as provided under section 99 would not lie. Respondent approached this court by filing W.P.(C) 8917/06 contending that he is entitled to file a recrimination petition and as section 99 does not enable her to file a recrimination Petition, she is to be permitted to file a recrimination Petition. That petition was dismissed at the admission stage itself holding that there is no question of recrimination or application under Section 99, as the petitioner in the election petition did not seek a declaration of her election. But it was observed that “respondent would be well within her rights to plead and establish her contention that the result of the election in so far as it concerns her, the returned candidate, is not materially affected by the alleged infraction of Section 78. Armed with this observation, respondent filed Ext. But it was observed that “respondent would be well within her rights to plead and establish her contention that the result of the election in so far as it concerns her, the returned candidate, is not materially affected by the alleged infraction of Section 78. Armed with this observation, respondent filed Ext. P3 application before the Election Tribunal to summon the District Collector to produce the records to substantiate her case that three persons who caste their votes in favour of the petitioner are voters who caste the vote in other Wards of Grama Panchayat election. Respondent contended that she is entitled to summon the records in view of Ext.P4 order of this court in W.P. (C) 8917/06. The Election Tribunal by Ext. P5 order allowed the petition as follows:- “I.A. allowed in view of the observation made by the Hon’ble Court in Writ Petition (C) 8917/06.” It is challenged in this petition filed under Article 227 of the Constitution of India. 2. The argument of learned counsel appearing for the petitioner is that the documents allowed to be summoned under Ext. P4 order are only to prove that three votes cast to the petitioner are invalid and that question cannot be considered by the Election Tribunal so long as no recrimination petition is maintainable under section 99 of the Act and therefore the impugned order is to be quashed. Learned counsel appearing for respondent argued that the question whether the missing of one ballot paper materially affected the result of the election of the respondent is a matter, which is to be decided by the Tribunal and it was allowed to be raised and proved by this court in Ext. P4 order and the Tribunal has only directed to produce all the documents under Ext. P4 order and that discretion exercised by the Tribunal cannot be challenged in exercise of the extra ordinary jurisdiction under Article 227 of the Constitution of India. 3. It is clear from the admitted facts that respondent is not entitled to file a recrimination petition as provided under section 99 of the Panchayat Raj Act. The election petition is filed only under section 102 (1) (d) (iv) of the Panchayat Raj Act. Petitioner did not seek a declaration that she or any other candidate has to be declared as elected in the place of the respondent. The election petition is filed only under section 102 (1) (d) (iv) of the Panchayat Raj Act. Petitioner did not seek a declaration that she or any other candidate has to be declared as elected in the place of the respondent. The only relief sought for is to set aside the election of the respondent. The question is whether in such a case respondent is entitled to prove that the votes caste in favour of the Petitioner are invalid. 4. Before examining the tenability of the Contentions it would be appropriate to take note of the general principle of law in respect of an election Petition. The Constitution Bench of the Apex Court in Jagan Nath V. Jaswant Singh (AIR 1954 SC 210) held:- “The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law. That legal position has been reiterated in Jyoti Basu V. Dabi Ghosal (AIR 1982 SC 983) as follows:- “A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute and election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the stature creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the representation of the people Act, 1951, different stages of the process being dealt with by different provision of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act 1951, and again, no such election may be questioned except in the manner provided by the Representation of the people Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute.” That was again reiterated in Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiah and another (AIR 1993 SC 1320). 5. The election petitioner may further ask a relief for the election of the returned candidate be declared void. She may also ask for an additional relief that she or any other candidate may be declared as elected. A recrimination petition is maintainable only if the petitioner had claimed additional relief. In the election petition if the additional relief is claimed the returned candidate is entitled to recriminate against the person in whose favour a declaration is claimed. She may also ask for an additional relief that she or any other candidate may be declared as elected. A recrimination petition is maintainable only if the petitioner had claimed additional relief. In the election petition if the additional relief is claimed the returned candidate is entitled to recriminate against the person in whose favour a declaration is claimed. The Apex Court in Janardan Dattuappa Bondre v. Govindprasad Shivprasad Choudary (AIR 1979 SC 1617) has laid the scope of a recriminatory plea as follows:- “The recriminatory plea is in truth and substance not so much plea in defence of one’s own election, though that be its ultimate purpose and effect, as a plea of attack by which the successful candidate assumes the role of a counter-petitioner and contends that the election of the candidate in whose favour the declaration is claimed would have been void if he had been the returned candidate and a petition had been presented calling his election in question.” When an election petitioner is filed only with the claim that the election of the returned candidate is to be declared void as in this case the only point which the Tribunal has to be decided whether the election of the returned candidate has been materially affected and no other enquiry is legitimate or permissible in such a case. The scope of an enquiry of a petition filed under section 102 (1)(d) (iv) of the Act is identical to Section 101 (1)(d) of Representation of peoples Act. The scope of an enquiry in such a petition was laid by the Apex Court in Jabar Singh v. Genda Lal (AIR 1964 SC 1200) as follows:- “In other words, the scope of the enquiry in a case falling under S.100 (1)(d) (iii) is to determine whether any votes have been improperly cast in favour of the returned candidate, or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in S.100(1)(d) (iii), the result of the returned candidate’s election has been materially affected, and that, incidentally, helps to determine the scope of the enquiry. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in S.100(1)(d) (iii), the result of the returned candidate’s election has been materially affected, and that, incidentally, helps to determine the scope of the enquiry. Therefore, it seems to us that in the case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of S.100(1)(d) itself. The enquiry is limited not because the returned candidate has not recriminated under section under section 97 (1); infact S.97(1) has no application to the case falling under S.100(1)(d)(iii), the scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate, the Tribunal has to make a declaration to that effect, and that declaration brings to an end the proceedings in the election petition.” (Emphasis supplied) That legal position has been reiterated in Bhag Mal v. Prabhu Ram (AIR 1985 SC 150). 6. In the facts of the case when the only prayer sought for by the petitioner in her election petition is to declare the election of respondent void consequent to the violation of the provisions of Section 78 of the Act the question whether the vote cast by certain voters in favour of the petitioner is invalid or not will not arise for consideration. The argument of the learned counsel appearing for the petitioner that whether that question will be relevant while deciding the question whether the missing of one ballot paper has materially affected the election of the respondent. The argument is that if the respondent could prove that that the missing votes did not materially affect the result as more number of votes polled to the petitioner are invalid and therefore the documents are relevant, cannot be accepted. The right of the elected candidate to dispute the validity of any votes cast in favour of any alternate candidate or to plead that the validity of any vote cast in his favour which has been rejected, would arise only if a recrimination is maintainable. The right of the elected candidate to dispute the validity of any votes cast in favour of any alternate candidate or to plead that the validity of any vote cast in his favour which has been rejected, would arise only if a recrimination is maintainable. Therefore the argument that documents allowed to be summoned is relevant and therefore Ext.P5 order is correct cannot be accepted. The Tribunal allowed the application only because of Ext.P4 order. Ext.P4 order does not provide that respondent is entitled to prove facts which could be proved only if she is entitled to file a recrimination as provided under section 99 of the Kerala Panchayat Raj Act. Hence she cannot be allowed to raise or prove facts by summoning the document which is not permissible under the Act. The Tribunal has not applied its mind on the provisions of the Act before passing Ext.P5 order. Ext.P5 order is quashed. The Tribunal is directed to dispose the election petition as expeditiously as possible in accordance with law. The Writ Petition is disposed of as above.