Judgment:
ORDER
S.S. Satheesachandran, J.
1. The revision is directed against the judgment dated 12.6.2009 in Election Appeal No. 400/2008 passed by the learned First Additional District Judge, Ernakulam, confirming the order dated 6-12-2008 in O.P. 6/2005 passed by the learned Principal Munsiff, Emakulam setting aside the election of the petitioner, the returned candidate in ward No. 38 of Kalamassery Municipality, and declaring the first respondent as the candidate duly elected from that ward.
2. The above election petition Q.P. No. 6/2005 was filed by the first respondent, defeated candidate in the election held for ward No-.38 of Kalamassery Municipality in the general election to the Municipalities held on 24.9.2005. The second respondent was another candidate who contested the election from that ward. Whereas the petitioner, the returned candidate got 494 votes, first respondent got 492 votes and, second respondent, 57 votes. Having secured majority of two votes more than that of the first respondent, the petitioner was declared elected from ward No. 38 of Kalamassery Municipality,
3. Shorn of all paraphernalia, the case presented by the first respondent to impeach the election of the petitioner, returned candidate to the extent necessary and the conclusions formed by both the courts below to set aside the election and declare the first respondent as the duly elected candidate in brief is stated hereunder:
The election of the petitioner was impeached on the ground that several voters who voted for him had voted in other wards also and thus there was double voting by them rendering their votes in both the wards void. Since the election of the petitioner is vitiated by reception of votes cast by voters who had exercised double voting in different wards., whose names and particulars are furnished in the election petition, the first respondent alleged that the election of the petitioner has to be declared as void and he should be declared as having been duly elected from ward No. 38 of Kalamassery Municipality. Though in the election petition names of six voters were shown as who had cast double voting, in evidence of the petitioner (PW6), it was confined to five persons and, later, the challenge was limited to, on the materials placed, only in respect of three voters, namely, Rajasree Pushkaran, Mohankumar Sivaraman Nair and Jameela Abdul Jamal, who were examined in the proceedings as PWs 7, 8 and 9, respectively. The electoral roll in the above Ward was exhibited as X1 and the relevant entries of the above voters in that roll are X1(a), X1(b) and X1(c) respectively, All three of them, admittedly, cast their votes exercising their franchise in the above ward and the signatures subscribed by them before casting their votes in the ballot paper account register (vote register) of that ward, exhibited as X12, are X12(b), X12(e) and X12(f) respectively.
4. The case of the first respondent was Rajasree Pushkaran, PW7, had cast her vote in the name of Rajasree Rajeevan, for another ward also, ward No. 42 of Cochin Corporation. X3 is the electoral roll of that ward and the entry with respect to her name as a voter in that ward is X3(a). Signature purported to have been subscribed by her in exercising her franchise in that ward is X5(a). In the case of Mohankumar Sivaraman Nair, PW8, it was alleged he had exercised his franchise as a voter in the name of Mohanan Sivaraman in ward No. 36 of Cochin Corporation. X4 is the electoral roll of that ward and X4(a) is the entry regarding his name in that roll.- Signature subscribed by him for casting the vote in the vote register of that ward is X6(a). Jameela Abdul Jamal, PW9, a voter in ward No. 38 had voted as Jameela Beeran in ward No. 13 of the same Municipality and X13 is the electoral roil of that ward and X13(a) is stated to be her signature in the ballot paper account register (vote register) of that ward evidencing exercising of franchise by that voter in the election to that ward. Though the three witnesses, PWs 7, 8 and 9 denied of having exercised their franchise in any ward other than ward No. 38 of Kalamassery Municipality on the basis of admissions culled out from them during the course of their examination that the signatures appearing in the relevant documents imputing their casting of votes in other wards are similar, the learned Munsiff concluded that, if any one impersonated them, there was no possibility of putting signatures similar to signatures of such witnesses and as such signatures seen in the relevant documents are subscribed by them and they had exercised double voting in two wards. Voting in the election was held by electronic machine and the data retrieved from the machine disclosed that all the above three voters cast their votes in favour of the petitioner, the returned candidate over which there is no dispute at all. Since they were found to have voted in two wards treating the votes cast by them in favour of the petitioner as void and detecting those three votes from the valid votes polled for him, the learned Munsiff found that the petitioner had secured only 491 votes, and since the first respondent had one vote more, having secured 492 votes, the election of the petitioner was declared void under Section 178(1)(d) of the Municipalities Act and the first respondent was declared as the candidate duly elected from that ward allowing his election petition with costs. In the appeal preferred by the petitioner, the learned Additional District Judge, after reappreciating the materials and comparing the signatures appearing in the relevant documents relating to these three witnesses, PWs 7, 8 and 9, with respect to the votes cast in two different wards, concluded that the similarity of the signatures in the respective documents established that all three of them had cast double voting in two different wards in the election. Confirming the decision of the learned Munsiff, the appeal was dismissed, which is challenged in this revision.
5. The learned Counsel for the revision petitioner assailed the impugned judgment of the learned District Judge and also the order of the learned Munsiff contending that both the decisions suffer from jurisdictional infirmity rendering them unsustainable under law. There was absolutely no real or positive evidence on the materials placed to conclude that PWs 7,8 and 9 had cast double voting to hold that the election of the petitioner as the returned was vitiated by reception of any vote which was void. The three witnesses, PWs 7,8 and 9 did not admit, but, denied of double voting and, still, the respondent, who summoned and examined them as his witnesses did not seek permission to declare them as hostile, and subject them to cross examination, to challenge their version and, when that be so, according to the learned Counsel, both the courts went wrong in concluding that the witnesses had admitted of double voting. There was practically no admission from the witnesses of double voting. But the Court below taking such a wrong surmise proceeded with the appreciation of materials and that led to patently erroneous conclusions causing grave injustice/submits the counsel. Courts below have acted with material irregularity in drawing conclusions on the similarity of the signatures in the relevant documents produced with respect to the votes purported to have been exercised by the above witnesses in two different wards, submits the counsel Whereas the learned Munsiff proceeded on the assumption there was admission by the witnesses of double voting/which was not so, according to the learned Counsel, the learned District Judge compared the signatures in the documents produced and exhibited, relating to the double voting by these witnesses and then concluded that the signatures are so similar and therefore these witnesses had cast double voting in two different wards. Comparison of the disputed signatures by the court is an act in excess of the jurisdiction conferred on the appellate court and, further, such a procedure followed by the court is incorrect and has not been approved, but, depreciated, by the apex court, is the submission of the learned Counsel, placing reliance on State of Delhi (Delhi Administration) v. Pali Ram : AIR 1979 SC 14. Comparing of disputed signatures by the court without the aid of an expert to determine whether there was improper reception of votes to enter a finding whether the votes cast by the voters are void or not, it is submitted by the counsel, is illegal, placing reliance on O. Bharathan v. K. Sudhakaran and Anr. : AIR 1996 SC 1140. The inclusion of names of voters in more than one electoral roll in two different wards by itself does not make the vote cast by them as void, and, so much so, there must be positive evidence establishing that they had cast double voting to render the vote cast by them as void, canvasses the counsel, placing reliance on Vikheshe Sema v. Hokishe Sema : AIR 1996 SC 1842 and Raman v. Balan Vaithyar 1988 (2) KLT 663. For the sole reason, the witnesses PWs 7, 8 and 9 have admitted the similarities of their signatures in the documents relating to reception of votes purported to have been cast by them in other wards, both the courts jumped into conclusions without any positive evidence to hold that they had cast double voting and as such the votes cast by them in favour of the petitioner are void. This was a case where there was no positive evidence establishing double voting by any of these witnesses, PWs 7, 8 and 9 and as such the decision concurrently rendered by both the courts below is patently unsustainable under law and it is liable to be reversed, submits the counsel, by allowing the revision. On the other hand, the learned Counsel for the first respondent, the petitioner in the election petition, emphasizing the limited scope in the exercise of revisional jurisdiction as spelt out in a catena of judicial decisions contended that there is no infirmity leave alone any irregularity in the concurrent finding entered by the two courts below that PWs 7, 8 and 9 had cast double voting and the votes cast by them, admittedly, in favour of the petitioner are void and as a result of which he had secured only lesser votes than the first respondent in the election. More than anything else, according to the learned Counsel, it is the purity of election which must prevail and in appreciating the disputed questions arising as to do tribe voting by a voter, a comparison of the signatures of the voters in the documents relating to votes cast by such voter in two different wards, it is submitted by the counsel, is proper, valid and correct and it has been so held by the apex court in A. Neelalohithadasan Nadar v. George Mascrene and Ors. : 1994 supp (2) SCC 619 expressing the view that scrutiny of such documents to determine the characteristics of the signatures by the court is in conformity with Section 73 when the larger public interest is to be served. Though in the above decision it has been cautioned that the courts should be slow in adapting that course, the learned Counsel submits that the scrutiny by the court of the relevant documents and comparison of the signatures of the voters with reference to the respective documents can never be said to be illegal. When no jurisdictional error is committed by the courts below in comparing the relavant documents relating to the votes cast by PWs 7, 8 and 9 with respect to their casting of votes in two different wards, a challenge on the findings arrived by the courts is not amenable to revisional jurisdiction of this Court, submits the counsel, relying on Nawab Shaqafath Ali Khan and Ors. v. Nawah Imdad Jah Bahadul and Ors. 2009 (5) SCC 164. Placing reliance on Omanakuttan v. Sajan Thomas : 2004 (2) KLT 891, it is submitted when PWs 7, 8 and 9 had cast votes in two different wards, two of them in a Corporation and the other in a different ward apart from casting votes in ward No. 38 of Kalamassery Municipality, and then the votes cast by them, admittedly, in favour of the petitioner, would suffer from the consequences of double voting, rendering them void, So there is no scope for interfering with the concurrent findings entered by the courts below that these witnesses had cast double voting in two different wards and as such the votes cast by them in favour of the petitioner are void, with the result he had secured only lesser votes than the first respondent rendering his election to be set aside and declaring of the first respondent as duly elected candidate, submits the counsel. The learned Counsel urged for dismissal of the revision petition as devoid of any merit.
6. In order to consider the submissions made by the counsel on rival side, and to examine whether the judgment passed by the learned District Judge impugned in the petition suffers from any serious infirmity warranting interference in exercise of the revisional jurisdiction vested with this Court, it is necessary to refer to the relevant provisions under the Kerala Municipalities Act and Rules which have application in entering a decision on the disputed question involved in the election petition. However, before doing so, some facts which are undisputed have to be taken due note of. Though the first respondent had a case that the result of the returned candidate, the petitioner, is vitiated by material irregularity by reception of six void votes from voters who had exercised franchise in two different wards, the challenge, later, in evidence is confined to three voters only, viz., PWs 7, 8 and 9. There is also no dispute that these three persons as voters in ward No. 38 of the Kalamassery Municipality had exercised their franchise in favour of the petitioner The names of these three voters with slight variations appear in the electoral roll in different wards, two of them in the Corporation and one in the same municipality, is also not seriously challenged though all of them had denied of exercising their franchise as voters in other wards. The evidence given by those witnesses when they were examined before the court on which findings supporting the impugned judgment are entered, need be looked into only if it is satisfied after analysing relevant provisions of the Act applicable with reference to the facts of the case such exercise is called for in revision to avoid miscarriage of justice.
7. The first respondent has challenged the election of the petitioner on the ground falling under Section 178(1)(d)(iii) of the Kerala Municipalities Act which reads thus:
178; Grounds for declaring election to be void:
(1) Subject to the provisions of Sub-section (2) if the court is of opinion:
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under this Act; or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(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 an agent other than his election agent; or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or
(vi) by any noncompliance with the provisions of this Act or of any rules or orders made thereunder. (Sub-section (2) of the Section is omitted as it is not' essential).
So far as the present case is concerned, the ground as already stated for impeaching the election of the petitioner is under Section 178(1)(d)(iii), Some voters who exercised their franchise, which after evidence is confined to three alone. PWs 7, 8 and 9, had cast votes in another ward also, two of them in the Corporation and one in a different ward in the same Municipality and, thus, the votes cast by them in favour of the petitioner are to be eschewed as the reception of their votes is void, is the foundation on which the entire edifice of the election petition for impeaching the election of the petitioner is built up.
8. Section 132 of the Municipalities Act, 1994 deals with the right to vote, which reads thus:
132. Right to vote:
(1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll for a ward shall be entitled to vote in that ward.
(2) No person shall vote at an election if he is subject to any of the disqualifications referred to in Section 74.
(3) No person shall vote at a general election in more than one wardf and if a person votes in more than one wardf his votes in all such wards shall be void,
(4) No person shall at any election vote in the same ward more than once notwithstanding that his name may have been registered in the electoral roll for that more than once and it he does so vote, all his votes shall be void.
(5) No person shall vote at any election if he is confined in a prison under a sentence of imprisonment or otherwise or is in the lawful custody of the police:
Provided that nothing in this subsection shall apply to a person subjected to preventive detention under any law for the time being in force
Sub-section (2) of Section 132 which forbids a voter from casting vote in the general election in more than one ward with the further declaration that if a person does sof his votes in all such wards shall be void is the basis of the case to canvass that the votes cast by PWs 7, 8 and 9 in favour of the petitioner are void and their votes have to be excluded in the counting of valid votes polled in his favour.
9. The fulcrum of controversy in the revision lies within a narrow campus. Both the courts below have concluded that PWs.7, 8 and 9 had exercised their franchise in two wards on the basis of the admissions purported to have been given by them with reference to the respective signed vote account registers exhibited in the case. Such conclusion formed by the infferier Court especially by the learned District Judge in appeal, after comparing the respective documents relating to the exercise of votes against respective witnesses in both wards, without the aid of an expert, after forensic examination of such documents with the admitted signatures of the witnesses, is not sufficient to hold that they had exercised franchise in more than one wards as alleged, to treat their votes cast in favour of the returned candidate, the revision petitioner, as void, is the challenge canvassed to impeach the decisions of the courts below.
10. The decisions relied by the learned Counsel for the revision petitioner in State of Delhi (Delhi Administration) v. Pali Ram : AIR 1979 SC 14 and O. Bharathan v. K. Sudhakaran and Anr. : AIR 1996 SC 1140 following upon comparison of disputed signatures by the courts without the aid of an expert, both by a bench of two Judges, has to be considered and examined with reference to the decision in A. Neelalohithadasan Nadar v. George Mascrene and Ors. : 1994 supp 2 SCC 619 rendered by a bench of three Judges, wherein it has been held that when larger public interest has to be served by expeditious disposal of election petition, it is open to the court to compare the admitted signatures of the voters with the disputed counter foils or documents, but, with a word of caution that it should be slower in adapting that course. So much so, the exercise of comparing the admitted signatures of PW 7, 8 and 9 with the disputed vote account registers and noting the similarity of their signatures by the learned District Judge cannot be found fault with.
11. More than the circumstance referred to above, I find the challenge raised by the revision petitioner loses its significance and is seen to be unworthy of any merit, where it is noticed that all the three voters, PWs.7, 8 and 9, have practically conceded that their names appear with slight variations in the other three different wards, two of them in Corporation of Kochi and the third in another ward in the Kalamassery Municipality. They have not exercised their votes in those wards was their assertion, and so much so, whatever be the admission culled out from them as to the similarity of their signatures in the vote account registers maintained in relation to the votes cast in the respective wards, without better cogent convincing evidence that these witnesses themselves had exercised franchise in those wards it cannot be concluded that they had voted in any ward other than ward No. 38 of the Kalamassery Municipality, is the argument of the learned Counsel for the revision petitioner. I am afraid that one basic and fundamental circumstance discrediting the version of PWs.7, 8 and 9 is lost sight of in projecting such a case. To resist the election petition and advance the case of the revision petitioner, the returned candidate, for whom these three witnesses admittedly cast their votes, it is seen, during their cross examination, their voters identity cards in relation to ward No. 38 of Kalamassery Municipality were produced and duplicates thereof were exhibited in evidence. The election to the Municipalities in General election, 2005 including Kalamassery Municipality and Corporation of Kochi, it is thus shown to have taken place after issuing of photo identity cards to the voters. When that be so, where it is conceded and more over established that these three witnesses PWs.7, 8 and 9 had their names in other wards and the votes thereof in their names had been cast in those respective wards, until the contrary is established, the chances of their impersonation can be ruled out as each voter had to be identified by the identity card and with the electoral roll, most probably prepared with their photos as well. Where it is established that PWs.7, 8 and 9 are voters in wards other than ward No. 38 of Kalamassery Municipality and the votes had been cast in their names as included in the electoral roll with slight variation of their names it follows that these voters had been issued identity cards for exercising such franchise in those wards and only on their identification, such voters had been permitted to cast their votes.
12. After the issue of photo identity cards to the voters and preparation of electoral roles with photos, it may not be correct to examine the question of double voting with respect to presumptions to be drawn thereof as laid down by this Court in Kunhiraman v. Kirshna Iyer 1962 KLJ 289, In the above decision, it has been held that there is a presumption that both votes were not cast by the same person which is stronger than the presumption that every vote is cast by the elector concerned, but after the issuing of photo identity cards wherein a presiding officer of a polling station issues a ballot paper to an elector or allow him to cast the vote by using the electronic machine, only after identification of his photo identify card or some other documents acceptable enough to identify the voter, the chances of impersonation of a voter is practically impossible. So much so, the similarity of the signatures in the respective vote account registers of these three witnesses has to be viewed in the backdrop that these voters had been issued identity cards in those wards also, other than ward No. 38 of Kalamassery Municipality and their impersonation in casting of votes in those wards can be ruled out unless it is shown that someone else had cast their votes even by forging an identity card and without any objection raised by the agents of the candidates present in the booth challenging that impostor. When the materials produced in the case establish that these three voters PWs. 7, 8 and 9, who cast their votes in favour of the revision petitioner, the returned candidate, had also cast their votes in other wards, rendering the votes cast by them in both the wards void, and on excluding their void votes, the result of the revision petitioner, returned candidate is materially affected, as the valid votes secured by the 1st respondent is more than the votes secured by the petitioner the decisions rendered by the courts below declaring the election of the petitioner as void and declaring the 1st respondent as the returned candidate in the election is only to be upheld. I do so.
The revision is devoid of any merit, and it is dismissed.