M. Manoharan vs Duraikanna

S.S. Subramani, J.—Respondent in Election O.P. No. 17 of 1996, on the file of Additional District Judge-cum-Chief Judicial Magistrate,

Pudukkottai, is the revision petitioner. The Revision is filed under Art. 227 of the Constitution of India. Election was conducted to Ward No. 13 in

Thiruvarankulam Panchayat Union, under the Panchayats Act. Petitioner herein was declared elected by a majority of eight votes. Petitioner herein

obtained 1472 votes and respondent herein obtained 1464 votes. Defeated candidate filed the Election Petition challenging the declaration of result

in favour of petitioner and also wanted to get himself declared as elected. The grounds on which the election petition was filed are: (1) Electoral roll

contained the names of dead persons and without any change in the electoral roll, the same was used. (2) Names of voters belonging to other

Panchayats were also included in the electoral roll. The same was used, though strongly objected by the respondent herein. The Presiding Officer

did not take any action even though there was impersonation. According to the respondent herein, voles polled in favour of the revision petitioner

are void and, therefore, they ought to have been excluded. Paragraph 6 of the Election Petition deals only with the counting procedure where may

irregularities have been alleged. I do not want to go into the details of the same, since the finding of the Election Tribunal is that there was no

irregularity in the counting. There was no necessity for recounting, since election petitioner did not seek recounting before the Returning Officer.

Allegations in the Election Petition were seriously disputed by petitioner herein. According to him, names of dead persons were not included in

the electoral roll. Likewise, name of residents of other village Panchayats were also not included, not did he utilise those votes in his favour.

The Election Tribunal took oral and documentary evidence. P.Ws.1 to 5 were examined on the side of the election petitioner and he marked

Exs.A-1 to A--3. Petitioner herein got himself examined as R.W.1 No. documentary evidence was adduced on his side. Exs.C-1 to C-10 were

marked through witnesses. Tribunal below held that there was no irregularity at the time of counting. There was also no application for recounting.

It came to the conclusion that dead persons'' names were included in the electoral roll. It also found that residents of the village Panchayats were

also included in the voters'' list of Ward No. 13. It, therefore, held that the election is liable to be set aside.

At the time when the Revision Petitioner came up for admission, I ordered notice of motion, and private notice was also directed to be issued to

respondent.

Even though the respondent was served, he did not enter appearance through Counsel. His name was printed in the cause list.

I heard learned Counsel for petitioner in detail, and also perused the entire documents produced by petitioner alone with typed set of papers.

After hearing learned Counsel for petitioner, and after perusing the Election Petition, I think that the Election Petition ought not to have been

entertained. The only ground on which the Election was set aside is, that names of dead persons have not been deleted from the voters'' list, and

names of voters from other villagers had also been included in the voters'' list.

Before going into the merits of the cause, let us consider the scope of Section 259 of the Tamil Nadu Panchayats Act. It provides the grounds

on which an election could be declared as void. It is corresponding to Section 100 of the Representation of people Act. Clause (d) of Sub-Section

(1) of Sec. 259 of the Act reads thus:-

S. 259. Grounds for declaring elections to be void - (1) Subject to the provisions of sub-Sec. (2), if the District Judge is of opinion:-

(a) to (c) ....

(d) that the result of the election in so far as it concerns a returned candidate has been materially affected -

(i) by the improper acceptance of any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate by a person other than that candidate or his agent or a person

acting with the consent of such candidate or agent; or

(iii) by the improper acceptance or refusal of any vote or reception of any vote which is void; or

(iv) by the non-compliance with the provisions of this Act or of any rules or order made thereunder, the Court shall declare the election of the

returned candidate to be void.

Rule 48(1) of the Tamil Nadu Panchayats (Elections) Rules, 1995 says that no person whose name is not entered in the electoral role of any ward

shall be entitled to vote. Sub rule (3) of Rule 48 says that no person shall vote in more than one ward in a Panchayat notwithstanding the fact that

his name may have been registered in the electoral roll of more than one ward of the Panchayat and if a person votes in more than one ward, his

votes in all such wards shall be void. I have already extracted the relevant portions of the Panchayats Act which require consideration in this case.

Cl. (d) of Sub-S. (1) of S. 259 of the Act enables the Tribunal to declare the election void if the result of the same is materially affected. In the

Election Petitioner, I do not find any such pleading.

The right to vote or stand for election is statutory right and, therefore, statutory requirements will have to be pleaded and proved. It is not an

ordinary suit under common law. In (1969) 3 SCC 548 , this question was considered. That was a case where the polling booth was changed

without notice on the day prior to the election. A contention was taken that the change of place has affected the polling. Rejecting the contention,

the Honourable Supreme Court held thus:-

As regards the change of the polling both, the High Court has found that the place of polling at Mudari Bujurg was changed to the new school

about half a furlong away from the old school. But there is no allegation made in the election petition that due to the change of place of voting. the

result of the election so far as it concerned the respondent had been materially affected According to Section 100(1 Yd) (iv) of the Act if there had

been any non-compliance with the provisions of the Constitution or of the Act or any rules or of orders made under the Act, the appellant must

show that the result of the election in so far as it concerns the returned candidate has been materially affected, if he wants the election of the

returned candidate to be declared void. There is no evidence on this point and even assuming that the polling booth was first fixed to be the old

school and it was subsequently changed by Laxman Nandeo without the permission of the appropriate authority, the election can not be held to be

void in the absence of any proof that the results of the election was materially affected so far as it concerned the appellants xx xx xx xx

(Emphasis supplied)

The same principle was reiterated in the decision reported in 1995 (3) SCC 318 (Charandass v. Surinder Kumar) In paragraph 3 of the judgment.

Their Lordships said thus:-

Before proceeding further, a glaring omission in the petition may be noticed here. namely, that it has not been alleged that the result of the election

has been materially affected by all or any of the alleged irregularities during counting, xx xx xx xx

(Emphasis supplied)

Paragraph 5 of the Election Petition reads thus:

The voters of the 13th Ward council member in Thiruvarankulam Union were exercised there franchise and polled their votes as scheduled on

12.10.1996. The wrong electoral was utilised by the Presiding Officer. The petitioner and his agents strongly protested against the wrong electoral.

The death persons'' names were not deleted in the electoral and other Panchayat Villagers'' names are in the electoral. The respondent utilised the

same. The petitioner and his agent strongly objected. But the Presiding Officer has not taken any action on the electoral and misrepresentation. The

said votes polled in favour of the respondent are void and, therefore, has to be excluded.

No details are given as to who are the dead persons whose names were included, and who are the votes who are residents of other villages.

Material facts which ought to have been pleaded are absent. Even the petitioner, when he was examined, as P.W.1, has not spoken about the

same. On a reading of paragraph 5 of the Election Petition, I find that it is very vague, and petitioner has not disclosed any details, giving rise to a

cause of action. Even on merits, I find that the finding of the Tribunal below can be considered as perverse.

As I have already said, the majority is by eight votes. The Tribunal below found that four voters are dead and in their names, votes have been

cast. No attempt was made by the Tribunal below or by P.W.1 to verify whether the votes have been cast in favour of the elected candidate.

Likewise, two voters were found to be residents of another Panchayat. Nobody says that these two voters exercised their franchise in favour of

the elected candidate. The only evidence was that the residents of another village have also exercised their votes. Even if all these six votes are

taken to the account of the defeated candidate the election in favour of the petitioner cannot be set aside. The Tribunal has only identified the six

votes, forgetting the fact that the majority of the election is eight votes. The Election Petition also does not say that these dead voters or the voters

from other Panchayats have voted in favour of the petitioner herein. The only allegation is that the petitioner herein utilised the same.

Regarding the two voters who claim to be residents of another Panchayat, there is no evidence in this case to show that they have cast their

votes in both the Panchayats. Mere inclusion of their names in the electoral roll in both the wards by itself will not make the election void. From the

Rule which I have extracted above, it is clear that only if the voter exercised his votes in both the Constituencies, his vote is declared as void. In a

recent decision of the Supreme Court reported in I. Vikheshe Sema Vs. Hokishe Sema, this question came up for consideration. Their Lordships

said in paragraph 9 thus:-

It is not in dispute that once the electoral rolls had become final, the validity of the same cannot be challenged in an election petition. If, however, it

is found that the name of a person is recorded in more than one constituency or more than once in the same constituency, then Section 62 (3) and

(4) come into play, if the name of a person is included in more than one constituency, then Sub-Section (3) of Section 62 states that he shall not

vote at a general election in more than one such constituency. If he votes in more than one constituency, then his vote in all the constituencies in

which he has votes, shall be deemed to be void. Section 62(4) of the Act which is applicable in the present case provides that if the name of a

person is included in the electoral roll in more than one place in the same constituency, then he shall not vote more than once but if he does so vote,

all his votes in the constituency should be regarded as void. It is evident from the plain reading of the language of sub-Section (3) or (4) of Section

62 that more inclusion of the names of voters at more than one place would not ipso factor render all those votes as void. If the name of a voter is

included at more than one place in the same constituency, he has the right to choose as to where he may vote but this right can be exercised by him

only once. The reason obviously is that every voter has only one vote and he has a right to vote only once and no more. If he chooses to vote at

more than one place, it is only then the vote of the person, wherever he has votes, would be regarded as being void.

(Emphasis supplied)

In the Election Petition, petitioner has not stated that the residents of the Village Panchayat in question have exercised their franchise in both the

Constituencies. If that be so, the discarding of the two votes by the Tribunal is not proper. The best evidence would be the examination of those

two voters. But no attempt was made by election petitioner to have them examined. Person who speaks about the same and also about their

identity, is a stranger through whom the election roll has been marked. Whether the names occurring in both the constituencies are the same, is a

matter to be proved by petitioner by identifying the person. No evidence was also let in that regard. As I said already, the only reason for setting

aside the Election by the Tribunal is found at pages 19 and 20 of the Order passed by it. It is as follows:

Grounds for declaring Elections to be void-

(1) Subject to the provisions of Sub-Section (2)

(a) ....

(b) ....

(c) ....

(d) that the result of the election in so far as it concerns a returned candidate has been materially affected....

(i) ....

(ii) ....

(iii) by the improper acceptance or refusal of any vote or reception of any vote which is void.

In Vashit Narain Sharma Vs. Dev Chandra and Others, Their Lordships considered effect of improper acceptance of votes. It was held thus:-

The language of S. 100 (1) (c) is too clear for any speculation about possibilities. The Section clearly lays down that improper acceptance is not

to be regarded as fatal to the election unless the Tribunal is of the opinion that the result has been materially affected. Where the finding of the

Tribunal that the result of the election has been materially affected is speculative and conjectural, the Supreme Court will interfere with the finding in

special appeal.

In AIR 1969 S.C. (Paokai v. Rishang). Their Lordships held in paragraph 9 thus:-

The burden is upon the election petitioner to show affirmatively that the result of the election has been materially affected.

Their Lordship went on and said in paragraph 12 thus:-

In our opinion, the decision of the learned Judicial Commissioner that the election was in contravention of the Act and the Rules was correct in the

circumstances of this case; but that does not alter the position with regard to Section 100 (1) (d) (iv) of the act. That Section requires that the

election petitioner must go a little further and prove that the result of the election has been materially affected. How he has to prove it has already

been stated by this Court, and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned

candidate could not be avoided. It is no doubt true that the burden which is placed by law is very strict: even if it is strict, it is for the Courts to

apply it. It is for the Legislature it should be altered. If there is another way of determining the burden, the law should say it and not the Courts xx

xx xx xx xx

(Emphasis supplied)

In view of my holding that there is absolutely no pleading and no evidence, to come to the conclusion that the result, of the election has been

materially affected, the decision of the Tribunal below is liable to be set aside. Tribunal has based its decision only on mere conjectures and

surmises or speculation. When the finding of the Tribunal below is based on no evidence, this Court is entitled to set aside the same by invoking its

jurisdiction under Art. 227 of the Constitution of the India. In the result, the Civil Revision Petition is allowed. Order passed in Election O.S. No.

17 of 1996 by the Tribunal below is set aside. Election O.P. No. 17 of 1996, on the file of Additional District Judge-cum-Chief Judicial

Magistrate, Pudukkottai, will stand dismissed. Since the respondent has not entered appearance, I am not awarding costs to there vision petitioner,

CMP. No. 12858 of 1998 for stay is closed.