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Judgment
Justice V. Chitambaresh
372 votes were cast in favour of the returned candidate and 371 votes were cast in favour of the election petitioner out of the total number of 776 votes polled. The election of the returned candidate was called in question under the provisions of the Kerala Panchayat Raj Act, 1994 on the following grounds:
(i) There has been an improper rejection of valid votes.
(ii) There has been an improper acceptance of invalid votes.
27 votes initially treated as invalid were directed to be inspected by the election court by virtue of judgment of this court in OP(C) No. 2311/2011. It was found after an inspection that 7 out of the 27 votes treated as invalid are in fact valid votes only. The inspection was done in the presence of the election petitioner, the returned candidate and their counsel. The election court found that five out of the seven invalid votes are valid votes cast in favour of the election petitioner. It was also found that two out of the seven invalid votes are valid votes cast in favour of the returned candidate. Thus the balance tilted in favour of the election petitioner who secured 377 votes in total as against 374 votes by the returned candidate.
Mr. M. Sasindran, Advocate on behalf of the revision petitioner vehemently contended that the five invalid votes treated as valid votes in favour of the election petitioner in fact contained counter foils which were removed by the election court during inspection. There is nothing on record to show that such removal did take place as has been alleged by the revision petitioner in this Civil Revision Petition. No application raising such allegation was filed before the election court except a ground in the Civil Miscellaneous Appeal filed before the lower appellate court against the final verdict. There is paucity of evidence to hold that five votes treated as valid in favour of the election petitioner are to be treated as invalid due to the presence of counter foils therein.
Equally unsustainable is the contention of the revision petitioner that three votes were found to be lost and that the returning officer should have resorted to the procedure u/s 78 of the Kerala Panchayat Raj Act, 1994. Mr. Ramakumar, Senior Advocate on behalf of the election petitioner alertly points out that the alleged loss of three votes as alleged has not been proved. The inspection of the invalid votes would at best indicate that three votes of another constituency were wrongly tagged along with the bundle of the votes of the constituency in question. I am not prepared to countenance the arguments of the revision petitioner that the returning officer has flouted the provisions of Section 78 of the Kerala Panchayat Raj Act in the instant case. Both the courts below have on the basis of the evidence on record found that there has been an improper rejection of valid votes warranting interference u/s 102 (1) (d) (iii) of the Kerala Panchayat Raj Act. The direction of the election court as affirmed by the lower appellate court in setting aside the election of the returned candidate is rested on evidence. The further direction to declare the election petitioner as the successful candidate from the ward in question cannot also be faulted with. There is no error of jurisdiction in the orders impugned warranting interference u/s 115 of the Code of Civil Procedure.
The Civil Revision Petition fails and is dismissed.