Research › Search › Judgment

Kerala High Court · body

2008 DIGILAW 554 (KER)

Abdulla Haji v. Mohammed

2008-09-04

M.SASIDHARAN NAMBIAR

body2008
Judgment :- Whether the election of a returned candidate to the Grama Panchayat can be set aside under Section 102(1)(d)(iii) of Kerala Panchayat Raj Act, 1994 without establishing that acceptance of void votes materially affected the result of his election? 2. The revision petitioner was declared elected to Ward No.XVI of Paivalike Grama Panchayat in the election held on 29.2005. The respondent in the revision petition, who is the petitioner in the Writ Petition, was the only other candidate in the election. The returned candidate secured 562 votes and respondent 556 votes. 53 votes were declared invalid. Respondent filed Election O.P.No.7/2005 before Munsiff Court, Kasaragod under Section 102(1)(d)(iii) of the Kerala Panchayat Raj Act contending that there were double voting in favour of the returned candidate. It was contended that son of the respondent who was examined as PW6 was registered in the same Ward twice and had also voted twice and both the votes are void. It was also contended that all the persons shown in the A schedule to the election petition were voters in the same or two Constituencies and had case their votes in both the Constituencies and therefore their votes are void. It was contended that as there were void votes in favour of revision petitioner, his election is void and if the void votes were not accepted in his favour respondent would have been declared elected. Respondent therefore sought a declaration that election of the revision petitioner is void and that he is the returned candidate. Revision petitioner resisted the petition contending that there was no double voting as alleged and his election has not been materially affected by acceptance of any void votes and therefore his election cannot be set aside or the respondent declared the elected candidate. Inspite of the declaration sought in the election petition, petitioner did not file a recrimination petition as provided under Section 99 of the Kerala Panchayat Raj Act. 3. To substantiate his case respondent examined himself as PW1, and also 11 witnesses who allegedly voted twice. Exts.A1 to A18, C1 and X1 to X19 were also marked. No evidence was adduced on the side of the petitioner. 4. 3. To substantiate his case respondent examined himself as PW1, and also 11 witnesses who allegedly voted twice. Exts.A1 to A18, C1 and X1 to X19 were also marked. No evidence was adduced on the side of the petitioner. 4. Learned Munsiff on the evidence found that there were 10 void votes as PW6 Musthaffa, who was enrolled as voter No.193 and 609 of Booth No.1 of Ward No.XVI, PW7 Balkis who was enrolled as voter No.667 and 847 of Booth No.1 of Ward No.XVI/, PW8 Muhammed Noushad, who was enrolled as voter No.590 and 873 of Booth No.2 of Ward No.XVI had voted twice and all their votes are void. It was also found that PW9 Ibrahim who was enrolled as voter No.627 of Booth No.1 of Ward No.XVI and voter No.37 of Booth No.1 of Ward No.XIII had cast his vote twice and therefore his vote in Ward No.XVI is void. Similarly it was found that PW2 Narayana Parusha had cast her votes in two constituencies as voter No.472 of Booth No.2 of Ward No.XVI and voer No.639 of Booth No.2 of Ward No.XV and thus her vote in Ward No.XVI/2 is a void vote. It was also found that PW3 Chithravathi, who was enrolled as voter No.474 of Booth No.2 of Ward No.XVI and voter No.640 of Booth No.2 of Ward No.XV and her vote was cast in Ward No.XVI/2 by impersonation and hence void. It was also found that PW4 Chandrakala, was enrolled as voter No.495 in Booth No.2 of Ward No.XVI and voter No.643 in Booth No.2 of Ward No.XV and her vote in Ward No.XVI/2 was cast by impersonation and that vote is void. PW5 Hareesh and PW11 Beefathima were found to be enrolled as voters in Ward No.XVI/2 and XV/2 and Ward No.XVI/1 and XIII/1 as voters 469 and 642, 605 and 110. On the evidence it was found that the votes polled in the name of PW5 and PW11 in Ward No.XVI/2 and XVI/1 were by impersonation and hence void. Based on these findings it was found that there were 10 void votes and as majority of the returned candidate was only six votes, improper acceptance of the ten void votes materially affected the result of the election. Thus election of the petitioner was declared void. Based on these findings it was found that there were 10 void votes and as majority of the returned candidate was only six votes, improper acceptance of the ten void votes materially affected the result of the election. Thus election of the petitioner was declared void. Finding that only five of the void votes could be located and identified as the other void votes polled in Ward No.XVI/2 cannot be sorted out, it was held that respondent cannot be declared the returned candidate. The election petition was allowed in part declaring the election of revision petitioner void. .5. Revision petitioner challenged that order before District Court, Kasaragod in C.M.A.33/2006. .Respondent challenged the refusal to grant a declaration in his favour in C.M.A.42/2006. Learned District Judge on reappreciation of evidence confirmed the findings of the Munsiff and dismissed both the appeals. C.R.P.1103/2007 is filed by the returned candidate challenging dismissal of the appeal confirming the order of the learned Munsiff. Respondent filed W.P.(C).No.33438/2007 challenging the dismissal of his appeal. 6. Learned senior counsel appearing for the revision petitioner and learned counsel appearing for the respondent were heard. 7. Learned senior counsel argued that neither the trial court nor the appellate court entered a finding that a void votes were cast in favour of the revision petitioner and thereby acceptance of those votes materially affected his election and instead finding that result of the election is materially affected by the improper acceptance of 10 void votes, set aside the election and the order is illegal. Learned senior counsel pointed out that as provided under section 102 (1)(d)(iii), only if result of the election, in so far as it concerns, the revision petitioner, has been materially affected by improper reception of void votes as contended by respondent, his election could be declared void and when the court could not identify or sort out the 10 void votes or found that the 10 void votes were cast in favour of the revision petitioner, it cannot be said that election of the revision petitioner was materially affected by the improper reception of the void votes and on that sole ground order of the learned Munsiff as confirmed by the learned District Judge is unsustainable. Learned senior counsel also argued that the trial court and the appellate court did not properly appreciate the evidence and finding that there was double voting by PW6, PW&, and PW8 in the same Constituency and PW9, PW2, PW3, PW4, PW5 and PW11 in two Constituencies is not in accordance with the pleading and evidence and therefore findings cannot be sustained. Learned senior counsel argued that there was no case in the election petition that any vote was cast by impersonation and instead case was only that there was double voting in favour of the petitioner and the specific case was persons named in the petition cast double voting and in the absence of a case of voting by impersonation, courts below were not justified in finding that there was impersonation and votes which were cast in the name of PW9, PW2, PW3, PW4, PW5 and PW11 by impersonation are void is not sustainable and orders of the courts below are to be set aside. .8. Learned counsel appearing for respondent, the election petitioner, argued that eventhough in the election petition apart from a declaration that election of revision petitioner is void, a further declaration that election petitioner is the returned candidate was sought and as provided under section 99 of the Kerala Panchayat Raj Act, no recrimination petition was filed and in the absence of recrimination petition, revision petitioner is not entitled to contend that any of the votes cast in favour of election petitioner is void and when there are only two candidates and it is provided that 10 void votes were improperly received, those void votes could only be excluded from the votes counted in favour of the revision petitioner and as he was declared elected only with a majority of six votes it is proved that improper reception of ten void votes materially affected his election and therefore the order passed by the Munsiff as confirmed by the District Judge is perfectly correct. Learned counsel also argued that enquiry contemplated in the first stage is whether there was any void votes and when the specific case was that there were double voting by the named persons and on the evidence it is established that there were 10 void votes, and the majority of the returned candidate was only 6 votes, it can only be found that improper reception of void votes materially affected election of the revision petitioner and thus his election can only be declared void. Learned counsel also argued that it is at the second stage, court has to find out to whom the void votes were cast and when such an enquiry is conducted, in the absence of a petition for recrimination under section 99, the ten void votes could only be excluded from the votes counted in favour of the revision petitioner, as he is disentitled to contend that election petitioner received any void votes. It is therefore argued that election of the revision petitioner was rightly declared void. Learned counsel also argued that once election of the revision petitioner was found void, court should have declared petitioner as the .duly elected candidate, as there are only two candidates and in the absence of a recrimination petition, none of the votes counted in favour of the election petitioner could be excluded and the 10 proved votes are to be excluded and if so excluded the total valid votes received by the revision petitioner could only be 552 and the valid votes counted in favour of the election petitioner was 556 and therefore he should have been declared elected with a majority of 4 votes. Learned counsel further argued that learned Munsiff was not justified in rejecting the declaration sought for by the respondent that he is the returned candidate and first appellate court also did not properly appreciate this aspect and the order is to be modified to the extent of declaring election petitioner, the returned candidate. 9. Section 102 of Kerala Panchayat Raj Act, (hereinafter referred to as the Act), provides the grounds for declaring election void. 9. Section 102 of Kerala Panchayat Raj Act, (hereinafter referred to as the Act), provides the grounds for declaring election void. Under clause (d) of sub section (1) of Section 102 subject to the provisions of sub section (2) if the court is of the opinion that result of the election in so far as it concerns the returned candidate, has been materially affected by (i) improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent or (iii) by improper reception, refusal or rejection of any vote or reception of any vote which is void or (iv) by any non-compliance with the provisions of the Act or of any rules or orders made thereunder, court shall declare the election of the returned candidate to be void. Sub rule (ii) only deals with corrupt practices, with which we are not concerned in these petitions. The election of the revision petitioner was sought to be declared void only on the ground provided under Section 102(1)(d)(iii). To set aside the election of the revision petitioner on that ground, court has to first find whether there was either improper reception or improper refusal or improper rejection of any vote or reception of any vote which is void. The court has then to find out whether the said improper reception, refusal, rejection or reception of void vote materially affected result of the election, in so far as it concerns a returned candidate. Though learned counsel appearing for respondent argued that, when the returned candidate was declared elected with a majority of only 6 votes and it is proved that there are 10 void votes, result of the election is materially affected and the election is liable to be set aside, I cannot agree. Even if it is proved that there was improper reception, improper refusal or improper rejection of any vote or reception of votes which are void, it need not necessarily materially affect the result of the election of the returned candidate. Even if it is proved that there was improper reception, improper refusal or improper rejection of any vote or reception of votes which are void, it need not necessarily materially affect the result of the election of the returned candidate. Take a case where the returned candidate was declared elected, with a majority of 100 votes and it is proved that there are 50 void votes, can it be said that even if all the 50 votes were cast in favour of the returned candidate, his election has been materially affected, by reception of those 50 votes. Take another example where it is proved that the returned candidate was elected with a majority of 20 votes and there are more than 2 candidates. Even if it is proved that there were 25 void votes, can it be said that because of reception of 25 void votes, election of the returned candidate who had a majority of only 20 votes, reception of the 25 void votes materially affected the election of the returned candidate. If out of the 25 votes 20 votes were not cast in favour of the returned candidate, but either in favour of one of the other candidates or in favour of the other two candidates. It cannot be. Therefore for the sole reason that election of the returned candidate was with a majority of only 6 votes and there were 10 void votes, it is not possible to hold that election of the returned candidate was materially affected by reception of 10 void votes. The result of the election, in so far as the returned candidate is concerned could be said to be materially affected, if it is proved that the returned candidate secured more void votes than the majority of votes for which he was declared elected. Therefore without finding that the proved void votes were cast and counted in favour of the returned candidate, it cannot be said that his election was materially affected by improper reception of void votes. If there are void votes and those void votes were not counted in favour of the returned candidate, how can one say that his election was materially affected by the improper reception of the void votes. If there are void votes and those void votes were not counted in favour of the returned candidate, how can one say that his election was materially affected by the improper reception of the void votes. Can the returned candidate made liable for the act of those voters in casting of void votes to in some other candidate, when it is shown that void votes were not cast in his favour. Definitely not. 10. The total polled votes in Ward No.XVI of Paivalike Constituency of Paivalike Grama Panchayat held on 29.2005 was 1164. There were 3 tendered votes and 7 postal votes. The revision petitioner who was declared elected, secured 562 votes. Respondent the only other candidate secured 556 votes. There were 53 void votes out of which one void vote was the postal vote. The revision petitioner was declared elected with a majority of 6 votes. Even if the factual finding of the trial court and appellate court that there were 10 void votes as proved by evidence is accepted, if the evidence is insufficient to hold that those 10 void votes were cast and counted in favour of the revision petitioner, it is not possible to hold that the 10 void votes are to be excluded from the 562 votes cast and counted in favour of the revision petitioner. The void votes could have been cast in favour of the election petitioner. It is also possible that majority of the void votes were among the 53 void votes. Therefore for the sole reason that there were ten void votes and revision petitioner was declared elected with a majority of only 6 votes, it is not possible to hold that election of the revision petitioner was materially affected by the reception of those 10 void votes. If all those 10 void votes were not cast in favour of revision petitioner, and only less than five were cast in his name, it cannot be said that reception of those ten void votes materially affected his election. Only if six or more of the void votes were cast in his favour, it could be said that reception of the void votes materially affected his election. Only if six or more of the void votes were cast in his favour, it could be said that reception of the void votes materially affected his election. Such a finding could be rendered only if those 10 void votes are identified, sorted out and found that those votes or at least six of those votes were originally cast in favour of the revision petitioner, it could be said that his election was materially affected by reception of those void votes. If that finding, is not possible on the evidence on record, election of the revision petitioner cannot be declared void. 11. The argument of the learned counsel appearing for respondent Adv. Sri. Kodoth Sreedharan relying on the Constitution Bench decision of the Apex Court in Jabar Singh v. Genda Lal (A.I.R. 1964 SC 1200) and in P. Malaiohami v. M. Andi Ambalam and Others (1973 (2) SCC 170) is that when it is found that there is double voting and thereby improper reception of void votes, none of the votes cast in favour of the respondent could be declared void and in the absence of a recrimination petition by revision petitioner the void votes are to be deducted from the votes secured by the revision petitioner, as he did not prefer a recrimination petition as provided under Section 99 of the Act and therefore election of the revision petitioner is void. 12. The Constitution Bench in Jabar Singh’s Case (supra) analysed the scope of an enquiry to be conducted, while considering an election petition to set aside the election on the ground under Section 100(1)(d)(iii) of Representation of People Act, 1951 which is in pari materia with Section 102 (1)(d)(iii) of the Act and also the distinction between an election petition claiming a single relief based on the allegation of double voting and an election petition claiming a composite or additional relief to get himself or any other candidate declared elected. It was held that in dealing with the challenge to the validity of the election of the returned candidate under Section 100(1)(d), election petitioner has to prove not only existence of one or other grounds specified in clauses (i) to (iv) of section 100(1) (d), it is also to be established that as a result of existence of the said ground, result of the election in so far as it concerns the returned candidate has been materially affected and thus it is obvious that what the Tribunal has to find is whether the election in so far as it concerns the returned candidate has been materially affected or not. It was held that what it means is that the only point which the tribunal has to decide is whether election of the returned candidate has been materially affected. No other enquiry is legitimate or permissible in that stage and the requirement under section 100(1)(d) necessarily imports limitations on the scope of the enquiry. The majority of the Constitution Bench held:- “Confining ourselves to clause (iii) of Section 100(1)(d), what the Tribunal has to consider is whether there has been an improper reception of votes in favour of the returned candidate. It may also enquire whether there has been a refusal or rejection of any vote in regard to any other candidate or whether there has been a reception of any vote which is void and this can only be the reception of a void vote in favour of the returned candidate.” 13. The argument of Advocate Mr. It may also enquire whether there has been a refusal or rejection of any vote in regard to any other candidate or whether there has been a reception of any vote which is void and this can only be the reception of a void vote in favour of the returned candidate.” 13. The argument of Advocate Mr. Kodoth Sreedharan is that the first part of the enquiry ends with this aspect and if it is found that void votes have been improperly received, then in the absence of a recrimination petition as provided under Section 99 of the Act, none of the votes cast in favour of the respondent could be excluded and when there are only two candidates and it is proved that there are void votes and as those votes are to be excluded, they could only be excluded from the votes cast in favour of the revision petitioner and if so, 10 void votes are to be deducted from the votes secured by the returned candidate and as a result, when the 556 votes secured by the respondent stands intact, the votes secured by the revision petitioner could only be 552 votes and therefore election of revision petitioner was rightly declared void. The argument based on Malaichami’s case (supra) is that in the absence of a recrimination petition as provided under section 99 of the Act, Election Tribunal has no jurisdiction to go into the question whether any void votes had been cast in favour of the election petitioner, who had claimed the seat for himself, unless the successful candidate had filed a recrimination petition and when there are only two candidates, there is no other option but to exclude the void votes from the total votes secured by the revision petitioner. 14. The Constitution Bench in Jabar Singh’s case (supra) analyzing the scope of an enquiry in a case falling under section 100(1) (d)(iii) held:- “In other words, the scope of the enquiry in a case falling under section 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. 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(10)(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 Section 100(1)(d) itself. The enquiry is limited not because the returned candidate has not recriminated under Section 97(1). In fact Section 97(1) has no application to the case falling under Section 10(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. 11. There are, however, cases in which the election petition makes a double claim it claims that the election of the returned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a composite case that S.100 as well as S.101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that S.97 comes into play. Section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other persons whose favour a declaration is claimed by the petition cannot be said to be validly elected and these would be pleas of attach and it would be open to the returned candidate to take these pleas, because when recriminates, he really becomes a counter petitioner challenging the validity of the election of the alternative candidate. The result of S.97(1) therefore, is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counter claim made by the returned candidate. That being the nature of the proceedings contemplated by S.97(1) it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by Section 97(1) proviso and Section 97(2). If the returned candidate does not recriminate as required by Section 97, then he cannot make any attack against the alternative claim made by 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, and if as a result of the said enquiry declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with the alternative claim, but in doing so, the returned candidate will 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.” (underline supplied) In Malaichami’s case (supra) a two Judge bench of the Apex Court was considering the validity of election of a member of Tamilnadu Legislative Assembly held in March, 1971. The appellant in that case was declared elected by a majority of 127 votes. Respondent had filed the election petition claiming recounting of votes and to declare election of appellant void and respondent duly elected. The attack in the election petition was in respect of the counting. It was contended that mixing of the ballot papers with rapid counting resulted in large number of votes polled in favour of the respondent erroneously added and bundled in the votes polled by the appellant and this resulted in wrong counting. It was further contended that ballot papers are to be arranged according to serial number and then counted. It was also contended that a number of votes have been declared invalid, without justification and any of those votes were cast in his favour and in the counting some of the invalid votes were taken in favour of the appellant and therefore prayed for recounting the votes and declaring him duly elected and also to declare election of the appellant void. The election Tribunal found that counting was not done properly and the order of the Returning Officer directing recounting of the ballot papers, treated as invalid, lends support to the contention of the respondent that votes were not properly scrutinized and the test check conducted by the Judge disclosed that some of the ballot papers treated as invalid are valid votes secured by the respondent and some of the votes secured by the respondent have been treated as invalid and rejected. Hence recounting was directed and after such recounting it was found that majority in favour of the appellant was reduced from 127 to 75. As such appellant had a majority of 75 votes. But the Election Tribunal holding that in the absence of a recrimination petition appellant is not entitled to question any vote which might have been improperly received on behalf of the respondent, found that respondent has 96 votes more than appellant and declared him elected. That was challenged before the Apex Court. Their Lordships held that the only ground on which the defeated candidate could be declared elected in under Section 101(1)(a) as in fact he had received a majority of valid votes. But it is in deciding who has got majority of valid votes, Section 97 comes into play. When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that election of such candidate would have been void, if he had been the returned candidate and a petition had been presented calling in question his election. When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that election of such candidate would have been void, if he had been the returned candidate and a petition had been presented calling in question his election. It was held that this right of the returned candidate is subject to the provision that he shall not be entitled to give evidence to prove that the election of the election petitioner or any other candidate would have been void, if he had been the returned candidate and the petitioner had presented petition calling in question, the election unless he had given notice of his intention to give such evidence and also given security and the further security referred to in Section 117 and 118 respectively and every such notice has to be accompanied by the statement and particulars required under section 83, in case of an election petition and shall be signed and verified in like manner and appellant in that case who was the respondent in the election petition should have given notice under Section 97 within fourteen days of his appearance and also should have complied with the other requirements specified and though later he made an attempt to file a recrimination petition, and a petition to excuse delay was filed, it was rejected and as appellant failed to comply with the requirements of Section 97, as such it is a case where there is no recrimination petition. The question considered was in the absence of a recrimination petition, at the time of recounting whether the votes counted in favour of the election petitioner could be varied. Their Lordships held:- “We may at the risk of repetition point out that the process of recounting included decision regarding the question of improper reception or improper rejection and there is no such thing as a general recount and there is no authority in law for suggesting that all that the respondent could have asked for was either a general recount or none at all. Indeed there is no provision in the Act for a petition to be filed alleging “Let all votes be recounted and whoever gets more votes be declared elected.” Nor do we think that any question of estoppel arises. Indeed there is no provision in the Act for a petition to be filed alleging “Let all votes be recounted and whoever gets more votes be declared elected.” Nor do we think that any question of estoppel arises. Estoppel may arise in respect of each individual vote conceded by one party or the other as valid and given in favour of the other in the sense that having conceded that a disputed vote should have gone to one or other of the parties the party who made that concession cannot go back on it. But where the law provides that no evidence can be given about the improper reception of votes in favour of the defeated candidate who had claimed a seat for himself unless the successful candidate had complied with Section 97, no question of estoppel arises. Concession is akin to admission and the use of such an admission would be evidence. What is barred under the proviso to Section 97 is the giving of evidence by the appellant. Appellant can give evidence either by relying on the respondent’s admissions or leading independent evidence. In either case it would be giving evidence. And since giving of evidence is barred, the concessions cannot be used as evidence in favour of the appellant. This is what the learned Judge has very clearly pointed out in his order. We have earlier quoted from the decision in Bhim Sen v. Gopali (supra), where the provisions of Section 97 had not been complied with. Even though as a matter of fact the valid as well as the invalid votes in favour of both the petitioner as well as the respondent might have been counted, the evidence furnished by such votes was not admissible because of failure to comply with the provision of Section 97.” It was held that though a general recount has been ordered and an account taken of the valid votes given for both the candidates, it was not possible to take into account any vote in favour of the appellant because of his failure to comply with Section 97. 15. The decision laid down in Malaichami’s case cannot be applied to a case where the court on the evidence on record is satisfied that there were void votes as those void votes are to be excluded. 16. 15. The decision laid down in Malaichami’s case cannot be applied to a case where the court on the evidence on record is satisfied that there were void votes as those void votes are to be excluded. 16. Apex Court in Vikheshe Sema v. Hokishe Sema (AIR 1996 SC 1842) declared the position in such a case thus:- “Once the High Court was convince, and it was evident from the facts on record that a large number of void votes had been received and they could have affected the outcome of the election, then it was under a duty to have taken the next logical step which would have been to examine the votes which had been cast, exclude the void votes and then recounted the valid votes in order to come to the conclusion whether the reception of the void votes had materially affected the result of the returned candidate. Without undertaking this exercise the High Court was wrong in coming to the conclusion that the election of the appellant had been materially affected and that the same should be set aside.” Their Lordships held that the course which was adopted in Bashir Ahmad Magrey v. Ghulam Quadir Mir (AIR 1977 SC 231) is to be followed in such a case. In Bashir Ahmad Margrey’s case election of the returned candidate had been set aside by the High Court after it had counted the votes which had been improperly rejected. When the appeal came up before the Apex Court, an order was passed whereby the Registrar (Judicial) was deputed to inspect, in the presence of the parties and their counsel, the 550 votes which were in question in that case and he was directed to submit a report thereafter. After the said exercise was completed, the Registrar submitted a report, after examining ballot papers that the excess of votes validly polled in favour of the returned candidate was 38. Accepting the report Apex Court upheld the election of the returned candidate. .17. Once it is found that the void votes were improperly received, the consequence is that the void .votes are to be excluded. Whether it was received by the returned candidate or the election petitioner, those votes are void abinitio and can never be accounted. Such a case cannot be equated with the case of recounting, at the instance of the election petitioner. Whether it was received by the returned candidate or the election petitioner, those votes are void abinitio and can never be accounted. Such a case cannot be equated with the case of recounting, at the instance of the election petitioner. Even if election petitioner had sought a declaration not only to declare the election of the returned candidate void but also to get himself or some other candidate declared elected and the returned candidate failed to file a recrimination petition, it does not make much difference. Once it is found that there are void votes, which were improperly received, court has to identify the said void votes and has to exclude them from counting. While so excluding, it cannot be contended that the votes were cast in favour of the election petitioner or returned candidate and in the absence of a recrimination petition those votes which were cast in his favour cannot be excluded. .18. Apex Court in Bashir Ahmed Magrey v. Ghulam Quadir Mir (AIR 1977 SC 231) considering the effect of receiving the void votes held:- .“It would appear from the figures set out above that, excluding all the votes which were found to have been improperly received by the appellant and also giving credit to the respondent for 59 votes which were found by the High Court to have been improperly rejected at the time of counting the net result still is that the appellant has a lead of 38 votes over the respondent. There is, therefore, no escape from the conclusion that the election of the appellant should be upheld. In an election petition founded upon the ground that the result of the election was materially affected by the improper reception or rejection of votes, the Court has first to decide whether certain ballot papers were improperly received or were improperly rejected. Once that controversy is resolved, the rest is purely a matter of arithmetical calculation. If the result of arithmetical calculation is that the returned candidate has still a lead over his nearest rival, his election would not be declared to be void on the ground of improper reception or improper rejection of votes can result in invalidating an election only if such improper reception or improper rejection materially affects the result of the election.” 19. A three Judge Bench of the Apex Court in Vashist Narain Sharma v. Dev Chandra (AIR 1954 SC 513) had occasion to consider an identical situation as in this case. Their Lordships considering the submission that election of the returned candidate has been materially affected held:- “9. The Learned counsel for the respondents concedes that the burden of proving that the improper acceptance of a nomination has materially affected the result of the election lies upon the petitioner but he argues that the question can arise in one of three ways: .(1) where the candidate whose nomination was improperly accepted had secured less votes than the difference between the returned candidate and the candidate securing the next highest number of votes. .(2) where the person referred to above secured more votes, and .(3) where the person whose nomination has been improperly accepted is the returned candidate himself. It is agreed that in the first case the result of the election is not materially affected because if all the wasted votes are added to the votes of the candidate securing the (next?) highest votes, it will make no difference to the result and the returned candidate will retain the seat. In the other two cases it is contended that the result is materially affected. So far as the third case is concerned it may be readily conceded that such would be the conclusion. But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predict how many or which proportion of the votes will go to one of the other of the candidates. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predict how many or which proportion of the votes will go to one of the other of the candidates. While it must be recognized that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100 (1) (c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand,” It was held that where the margin of votes is greater than the votes secured by the candidate, whose nomination paper has been improperly accepted, the result is not only materially not affected but not affected at all and were it is not possible to anticipate as in that case, the petitioner must discharge the burden of proving the fact that election of the returned candidate has been materially affected and on his failure to do so, election must be allowed to stand. 20. Another Bench of the Apex Court in Ahammed Kabeer v. Azeez (2003 (2) KLT 472) analyzed all the decided cases on the point and summed up the law as follows:- “33. We have already stated that the rigorous rule propounded by the Constitution Bench in Jabar Singh’s case has met with criticism in some of the subsequent decisions of this Court though by benches of lesser coram and an attempt at seeking reconsideration of the majority opinion in Jabar Singh’s case has so far proved to be abortive. The view of the law taken by the Constitution Bench in Jabar Singh’s case is binding on us. The view of the law taken by the Constitution Bench in Jabar Singh’s case is binding on us. Analyzing the majority opinion in Jabar Singh’s case and the view taken in several decisions of this Court, referred to hereinabove, we sum up the law as under:- .(1) In an election petition wherein the limited relief sought for is the declaration that the election of returned candidate is void on the ground under S.100 (1) (d) (iii) of the Act, the scope of enquiry shall remain confined to two questions: (a) finding out any votes having been improperly cast in favour of the returned candidate, and (b) any votes having been improperly refused or rejected in regard to any other candidate. In such a case an enquiry cannot be held into and the election petition decided on the finding (a) that any votes have been improperly cast in favour of a candidate other than the returned candidate, or (b) any votes were improperly refused or rejected in regard to the returned candidate. .(2) A recriminationby the returned candidate or any other party can be filed under S.97(1) in a case where in an election petition an additional declaration is claimed that any candidate other than the returned candidate has been duly elected. .(3) For the purpose of enabling an enquiry that any votes have been improperly cast in favour of any candidate other than the returned candidate or any votes have been improperly refused or rejected in regard to the returned candidate the election court shall acquire jurisdiction to do so only on the two conditions being satisfied: (i) the election petition seeks a declaration that any candidate other than returned candidate has been duly elected over and above the declaration that the election of the returned candidate is void; and (ii) the recrimination petition under S.97 (1) is filed. (4) A recrimination petition must satisfy the same requirements as that of an election petition in the matter of pleadings, signing and verification as an election petition is required to fulfil within the meaning of S.83 of the Act and must be accompanied by the security or the further security referred to in Ss.117 and 118 of the Act. (4) A recrimination petition must satisfy the same requirements as that of an election petition in the matter of pleadings, signing and verification as an election petition is required to fulfil within the meaning of S.83 of the Act and must be accompanied by the security or the further security referred to in Ss.117 and 118 of the Act. .(5) The bar on enquiry enacted by S.97 read with Section 100(1) (d) (iii) of the Act is attracted when the validity of the votes is to be gone into and adjudged or in other words the question of improper reception, refusal or rejection of any vote or reception of any vote which is void is to be gone into. The bar is not attracted to a case where it is merely a question of correct counting of the votes without entering into adjudication as to propriety, impropriety or validity of acceptance, rejection or reception of any vote. In other words, where on a recount the election Judge finds the result of recount to be different from the one arrived at by the returning officer or when the election Judge finds that there was an error of counting the bar is not attracted because the court in a pure and simple counting carried out by it or under its directions is not adjudicating upon any issue as to improper reception, refusal or rejection of any vote or the reception of any vote which is void but is performing mechanical process of counting or recounting by placing the vote at the place where it ought to have been placed. A case or error in counting would fall within the purview of sub-cl.(iv) and not sub.cl.(iii) of Cl.(d) of sub-s.(1) of S.100 of the Act.” 21. The legal position is that when an election petition is filed with a prayer for declaring the election of the returned candidate void on any of the grounds enumerated in Section 102 and no relief is sought as provided under section 103 claiming an additional relief of declaring that he himself or any other candidate has been duly elected, Section 99 of the Act has no role to play. In such a case if the election is sought to be declared void only on the ground under section 102 (1)(d)(iii), the question to be considered is whether there was improper reception or improper refusal or improper rejection of any vote or improper reception or any vote which is void. If it is found that there was improper reception or improper refusal or rejection of a vote or improper reception of any vote which is void, then it is to be considered whether result of the election in so far as it concerns the returned candidate has been materially affected or not. Only if it is found that election of the returned candidate has been materially affected, by such improper reception or refusal or rejection of vote or improper reception of void votes question of declaring the election of the election petitioner or some other candidate arises, as provided under section 103 of the Act. It is only when this aspect is considered, absence of a recrimination petition provided under section 99 of the Act is relevant. As provided under section 99 while considering the question whether election petitioner or some other candidate is to be declared duly elected, in the absence of a recrimination petition under section 99, the returned candidate is disentitled to prove that election of such candidate is void either for improper reception, refusal or rejection of any vote or improper reception of any vote in his favour. But that question will arise only when election of the returned candidate is found to be materially affected by such reception or refusal and in the absence of evidence to prove that election of the returned candidate has been materially affected by improper reception or rejection of any valid vote and the latter question does not arise. Therefore in such a factual situation absence of a recrimination petition under section 99 is not relevant or material. Therefore for the sole reason that evidence establish that there are 10 void votes and the returned candidate was elected with a majority of only 6 votes, his election cannot be declared void unless it is further proved that those void votes were cast in favour of the returned candidate. The trial court and the appellate court did not find that the ten void votes, which were improperly received, were cast in favour of the revision petitioner. 22. The trial court and the appellate court did not find that the ten void votes, which were improperly received, were cast in favour of the revision petitioner. 22. Learned Munsiff on the evidence found that PW6, PW7 and PW9 had enrolled their names in the same Constituency namely Ward No.XVI/1 twice and also voted twice and therefore both the votes polled by them are void. Thus finding was that six votes cast by them are void and are to be excluded. It was also found that votes cast in the name of PWs 2 to 5 in Ward No.XVI/2 was by impersonation and therefore the said 4 votes are also void. It is on that basis trial court found that there are ten void votes. The appellate court also confirmed that finding. The trial court on the evidence on record found that there were two booths in Ward No.XVI of Paivalike Constituency namely Booths No.XVI/1 and XVI/2. It was also found that the counterfoils of the used ballots relating to the voters in Ward No.XVI/2, do not contain the serial number of the voters to whom a particular ballot was issued. Learned Munsiff also found that Polling Officer in Ward No.XVI/2 committed irregularity in issuing the ballot papers to the voters as Exts.X6 series X7 and X8 counterfoils of the ballot papers issued to the voters in Ward No.XVI/2 do not contain the serial numbers of the ballot papers issued and therefore it is not possible to find out to whom each ballot was issued. Learned Munsiff on that basis entered an unambiguous factual finding that it is not able to trace out the ballot papers issued to the voters in booth No.2 of Ward No.XVI of Paivalike Constituency. Learned Munsiff could not trace out the 4 void votes, which were improperly received being the votes of Pws.2 to 5. Similarly out of the double voting found against PW7, one was as voter No.667 of Ward No.XVI/2. That ballot paper could not also be traced or identified. Therefore it is clear from the records and the evidence that out of the ten void votes, five void votes namely the four void votes found to be cast by impersonation and one of the double votes cast by PW7, could not be sorted out or identified. That ballot paper could not also be traced or identified. Therefore it is clear from the records and the evidence that out of the ten void votes, five void votes namely the four void votes found to be cast by impersonation and one of the double votes cast by PW7, could not be sorted out or identified. As a result it is not possible to find out to whom those 5 void votes were cast or the votes were counted. Neither the trial court nor the appellate court entered a finding that the other five ballot papers identified by the court namely X16(a), X12(b), X10(a), X15(a) of X14 (a) were cast in favour of revision petitioner, the returned candidate. Even if it is taken that all those 5 votes were cast in favour of the revision petitioner, who was the returned candidate, and those void votes are to be excluded from 562 votes received by him, his votes again would be 557. Even if the argument of the learned counsel appearing for the respondent that in the absence of a recrimination petition, none of the void votes, if any received by the election petitioner could be excluded, and he secured only 556 votes. If so, it could only be the revision petitioner, who got the majority of votes. Therefore it cannot be said that the result of the election of the revision petitioner in such a case has been materially affected by the reception of those five void votes, which alone could be traced out and excluded by the courts below. Neither the learned Munsiff nor the learned District Judge, considered this vital aspect and instead wrongly declared election of the returned candidate void. From the fact that court has found that there were ten void votes, it cannot be found that all the ten void votes were cast in favour of the revision petitioner. It is possible that all or majority or at least some of the void votes had in fact cast in favour of the election petitioner or could be among the 53 invalid votes. It is possible that all or majority or at least some of the void votes had in fact cast in favour of the election petitioner or could be among the 53 invalid votes. In such a situation, no purpose will be served by remanding the election petition to the trial court to trace out the void votes and to decide the case afresh after excluding the said void votes as it was specifically found by the learned Munsiff that it is impossible to trace out the remaining five void votes. 23. Rule 27 of the Kerala Panchayat Raj (Conduct of Election) Rules provides the procedure for the ballot boxes used for poll and Rule 28 the Form of ballot papers and Rule 29 marked copy of the electoral roll. Under Rule 29 immediately before the commencement of the poll, the Presiding Officer shall demonstrate the polling agents and other persons present that the marked copy of the electoral roll to be used during the poll does not contain any entry other than those entries specified in clause (b) of sub rule (3) of Rule 22. Rule 34 provides issue of ballot papers to electors and Rule 35 provides maintenance of secrecy of voting Polling Station and the voting procedure. 24. Rule 34 reads:- “34. Issue of ballot papers to electors:- (1) Every ballot paper intended for election to a Panchayat, before it is issued to an elector and the counterfoil attached thereto shall be stamped on back with distinguished mark and every ballot paper, before it is issued, shall be signed in full on its back by the Presiding Officer. .(2) At the time of issuing a ballot paper to an elector, the Polling Officer shall.--- (a) record on its counterfoil the electoral roll number of the elector as entered in the marked copy of the electoral roll; .(b) obtain the signature or thumb impression of that elector on the said counterfoil, and if the elector is not willing to do so no ballot paper shall be issued to him. .(c) underline the entry relating to the elector in the marked copy of the electoral roll to indicate that a ballot paper has been issued to him, without however recording therein the serial number of the ballot paper issued to that elector; and .(d) in the case of woman electors, put a tick mark on the left hand side of the entry in the marked copy of the electoral roll. .(3) No person in the Polling Station shall not down the serial numbers of the ballot paper issued to a particular elector.” Rule 35 reads:- 35. Maintenance of secrecy of voting within Polling Station and voting procedure:--- .(1) Every elector towhom a ballot paper has been issued shall maintain secrecy of voting within the Polling Station. .(2) Theelector on receiving the ballot paper shall forthwith:--- .(a) proceed to one of the voting compartments. .(b) then make a mark on the ballot paper on the side where the names and symbols of the candidates are imprinted, with the instrument supplied for the purpose on or near the symbol of the candidate for whom he intends to vote. .(c) fold the ballot paper so as to conceal his vote; .(d) if required, show to the Presiding Officer the distinguishing mark on the ballot paper; .(e) insert the folded ballot paper into the ballot box; and .(f) quit the Polling Station. .(3) Every elector shall vote without undue delay. .(4) No elector shall be allowed to enter a voting compartment when another elector is inside it. .(5) If an elector to whom a ballot paper has been issued, refuses, after warning given by the Presiding Officer, to observe the procedure as laid down in sub-rule (2), the ballot paper issued to him shall, whether he has recorded his vote thereon or not, be taken back from him by the Presiding Officer or Polling Officer under the direction of the Presiding Officer and the Presiding Officer shall record on its back the words “cancelled, voting procedure violated” and put his signature below those words. .(6) All the ballot papers on which the words “cancelled, voting procedure violated” are recorded, shall be kept in a separate cover which shall bear on its face the words “Ballot Paper, voting procedure violated”. .(6) All the ballot papers on which the words “cancelled, voting procedure violated” are recorded, shall be kept in a separate cover which shall bear on its face the words “Ballot Paper, voting procedure violated”. .(7) The vote, recorded on any ballot paper cancelled under sub-rule (5) shall not be counted.” It is therefore clear that at the time of issuing a Ballot paper to an elector, Presiding Officer shall record on the counterfoil the electoral roll number of the elector as entered in the marked copy of the electoral roll and obtain signature or the thumb impression of that elector on the said counterfoil and if the elector is not willing to do so ballot paper shall not be issued to him. The particular vote cast by a voter can be identified only with reference to these entries. The evidence establish that the Polling Officer has not complied with the procedure. As a result the votes polled by the voters in booth No.2 of Ward No.XVI, cannot be identified or located. In such circumstance, it is not possible to find out to whom the five void votes were cast in Ward No. XVI/2. Therefore, an order of remand can only be a futile exercise. If that be so, even if findings of the courts below that there are ten void votes is accepted, election of the revision petitioner as the returned candidate cannot be declared void as there is no evidence to prove that he received the said void votes. 25. Learned senior counsel challenged the finding of the trial court as confirmed by the appellate court on the question of void votes also. It was argued that the only allegation in the election petition was that the voters named in the election petition including PWs. 2 to 5 were voted twice in the same Constituency and thus there was double voting and all their votes are void. It was argued that there was no allegation that the votes polled in Ward No.XVI, where revision petitioner was declared the elected candidate, PWs 2 to 5 did not vote or that their votes were cast by impersonation and in the absence of pleading courts below should not have accepted the case of impersonation and based on that evidence should not have found that the votes polled by PWs. 2 to 5 in Ward No.XVI/2 were void as votes were cast by impersonation. It was also argued that finding that PW7 had cast votes twice in Ward NO. XVI/1 is not supported by the evidence and the evidence would establish that he voted only once. It was pointed out that Exts.XI(a) counterfoil relating to voter No.847 was put to PW7 and he admitted his signature in the counterfoil and Ext.X2 the marked copy maintained by the Polling Officer establish that ballot paper was not issued to PW7 as Voter No.667 and therefore finding that he cast vote as voter No.667 also and hence there was double voting by PW7 is against the evidence. There is force in the submission of the learned senior counsel. When Ext.X2 the marked copy which should contain an entry if ballot paper was issued to PW7 as voter No.667 does not contain such an entry, the finding that PW7 voted as voter No.667 and so there is double voting cannot be accepted. It is more so, when the counterfoil of serial No.662 was not put to the witness and witness asserted that he voted only once as voter No. 847. If that be the case, the void votes could only be four due to the double voting. Whatever it be, even if these are void votes, as it is not established that reception of those void votes materially affected the election of revision petitioner as the returned candidate, it is not necessary to go into that question in detail. Courts below were not justified in declaring the election of the revision petitioner as the returned candidate to Ward No.XVI of Paivalike Constituency of Paivalike Grama Panchayat in the absence of evidence to prove that election of revision petitioner as the returned candidate was materially affected by reception of void votes. His election cannot be declared void. Revision Petition is allowed. The order of Munsiff, Kasaragod in O.P. 7/2005 (Election) and the District Court, Kasaragod in CMA 33/2006 and 42/2006 are set aside. The O.P.7/2005 stands dismissed. W.P.(C) 33438/2007 is dismissed.