IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 18TH DECEMBER 2006 / 27TH AGRAHAYANA 1928 El.Pet..No. 4 of 2006() ----------------------- PETITIONER: --------------- ADV. S.SUNDARESAN, AGED 55 YEARS, S/O. SIVADASAN, SUSMITHA, VETTIMANKONAM, THOTTAKKAD P.O., KALLAMBALAM, TRIVANDRUM. BY ADV. SRI.THOMAS ABRAHAM SRI.K.B.ARUNKUMAR SRI.DIPU.R SMT.MERCIAMMA MATHEW SMT.JANCY MATHEW RESPONDENTS: ----------------- 1. VARKALA KAHAR, PUTHENVEEDU, NADAYARA, VARKALA P.O. 2. KUMAR R., RODUVILA VEEDU, SREENIVASAPURAM. 3. CHERUNNIYOOR SIVAPRASAD, MELOOT VEEDU, AYANTHI, VARKALA P.O. 4. K.R.ARAVINDAKSHAN PILLAI, PRAKASH BHAVANAM, KAKKAKUNNU P.O., SOORANAD SOUTH. 5. K.OMANA, CHAVARUVILA VEEDU, KALLAMBALAM P.O. 6. KAHAR, RAHILA MANZIL, KSHETHRAM VILA VEEDU, PALAYAMKUNNU, VARKALA. EP.4.2006 - 2 - 7. ADV. SREEVALSAM GOPALAKRISHNAN, SREEVALSAM, BHARATHANNUR, NEDUMANGAD. 8. MURALIKUMAR, PRITHVI, POIKAMUKKU, AVANAVANCHERRI, ATTINGAL. 9. VIVEKANANDAN, NJARAKUZHI VEEDU, JANARDHANAPURAM, VARKALA P.O. 10. SASIDHARAN, KATTUVILA, MUNDAYIL, VARKALA. BY ADV. SRI.K.JAGADEESCHANDRAN NAIR SRI.J.KRISHNAKUMAR SRI.P.PARAMESWARAN NAIR SRI.SAJIKUMAR.K.K. SMT.DIVYA C BALAN SRI.SUNIL KUMAR A.G SRI.SAJU.S.A SRI.R.SREEKUMAR (PUNNORKODE) THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 26/10/2006, THE COURT ON 18/12/2006 DELIVERED THE FOLLOWING: EP.4/2006 -: 1 :- THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = E.P.No. 4 of 2006 = = = = = = = = = = = = = = = = = = = = = Dated this the 18 t h day of December, 2006. O R D E R Petitioner, a candidate, challenges the election of the respondent to the Kerala Legislative Assembly from No. 127 – Varkala assembly constituency, in the 2006 election to the Kerala Legislative Assembly. 2. First respondent, the returned candidate, has filed an affidavit of preliminary objections and I.A.No. 5 of 2006 seeking that the pleadings in paragraphs 4 to 12 (virtually, the entire pleadings) be struck out and the election be rejected as one not disclosing any cause of action. I.A.No. 6 of 2006 is filed seeking that I.A.No. 5 of 2006 may be heard and disposed of as a preliminary objection to the maintainability of the election petition. 3. Having regard to the averments in the election petition, it is necessary to advert to the provisions of the Representation of the People Act, 1950, hereinafter, the “1950 Act”, for short; the Representation of the EP.4/2006 -: 2 :- People Act, 1951, hereinafter, the “1951 Act”, for short; the Registration of Electors Rules, 1960, hereinafter, the “R E Rules”, for short, the Conduct of Election Rules, 1961, hereinafter, the “C E Rules”, for short; Order No. 3/ER/2993/JS-II dated 27.03.2003, of the Election Commission of India, hereinafter, the “E C Order”, for short and the Model Code of Conduct for the Guidance of Political Parties and Candidates – 2006 issued by the Election Commission of India, hereinafter, the “Code of Conduct”, for short. 4. The allegations and the grounds of challenge are set forth in Paragraphs 4 to 12 of the election petition. 5. Paragraph No. 4 contains the general statement of the petitioner that the election of the first respondent is void under the various provisions of the 1951 Act, enumerated therein. 6. Paragraphs 5 and 6 require to be read together. The allegations therein are as follows: The 1 s t respondent who was the sitting MLA of Varkala Constituency had made elaborate arrangements for manipulations in the voters EP.4/2006 -: 3 :- list much in advance. The names of nearly 10000 voters were deleted from the electoral roll/voters list, which was done through the members of the service organizations owing allegiance to United Democratic Front and Indian National Congress Party. A substantial number of the deleted persons are voters of the Left Democratic Front. A large number of voters included in the lists of deleted persons are genuine voters who still continue to reside in the same address. The massive deletion of voters done at the instance of the 1 s t respondent and his supporters has substantially affected the petitioner as the margin between the 1 s t respondent and the petitioner is only 1625 votes. It is only common man's knowledge that as the life expectancy has considerably increased and number of births exceed deaths the number of voters can only increase and cannot decrease. But in Varkala Assembly Constituency the number of electors have decreased. The illegal and improper deletion of a large number of voters is an important aspect that has detrimentally affected the petitioner's election prospects. 6A. It needs no elaboration to notice that the aforesaid pleadings in paragraphs 5 and 6 in the election petition are wholly vague and sweeping, with no specific allegations. Not a single specific case of EP.4/2006 -: 4 :- deletion or addition of names in the electoral roll is pleaded. 6B. That apart, there is no provision in the 1951 Act that enables the High Court to set aside the election on the ground of any defect in the electoral roll. Part III of the 1950 Act deals with the preparation of rolls in a constituency. The provisions contained therein prescribe the qualifications for being registered as a voter as well as the disqualifications. Sections 21 to 23 of that Act provide for revision of electoral rolls, correction of entries in the electoral rolls and inclusion of names in electoral rolls. Sections 14 to 24 of the 1950 Act are integrated provisions and they form a complete code by themselves in the matter of preparation and maintenance of electoral rolls. The entries in the electoral rolls are final and they are not open to challenge either before a civil court or before a tribunal which considers the validity of any election. Such an embargo in law is noticed and is part of the law laid by the Apex Court in Kabul Singh v. Kundan Singh [(1969) 2 SCC 452 ]. To hold so, Section 30 of the 1950 Act barring the jurisdiction of the civil courts, was also noticed. After noticing the law laid down in Kabul Singh (supra) and the EP.4/2006 -: 5 :- provision of Section 30 of the 1950 Act, it was laid down by the Apex Court in Hari Prasad Mulshanker Trivedi v. V.B.Raju [(1974) 3 SCC 415 ] that there is an implied ouster of the jurisdiction of the court trying an election petition to go into the question of validity of an electoral roll. This position was reiterated by the Apex Court in S.K.Choudhary v. B.Panjiar (AIR 1973 SC 717 ) wherein it was held that in a petition to the High Court to set aside an election, it is not open to the High Court to go into the question whether the names of certain persons entered in the electoral roll were entered illegally. The Apex Court further held that even assuming that the inclusion of names of certain persons in the electoral roll was illegal, it was not open to the High Court, when trying an election petition, to go behind the electoral roll and enquire into the question whether those persons were validly included in the electoral roll. Hence, any plea of improper inclusion and exclusion to the electoral roll is no ground to set aside an election. 6C. The right to be included in the electoral roll or to challenge the inclusion of any name in the electoral roll is a right conferred upon an individual and the fact that certain names for inclusion of names EP.4/2006 -: 6 :- in electoral rolls or objections relating to inclusion of certain names are not finally disposed of, cannot arrest the process of election to the legislature. [See Lakshmi Charan Sen v. A.K.M.Hassan Uzzaman (AIR 1985 SC 1233)]. As a necessary corollary, the inclusion or exclusion of persons from the voters list is not justiciable in an election petition under the 1951 Act. 6D. Therefore, the pleadings in paragraphs 5 and 6 of the election petition, apart from being vague, do not disclose any cause of action, to be tried. 7. Paragraph No. 7 of the election petition contains a general statement that the election of the first respondent is liable to be declared void under Section 100(1) (b) of the Act as he and his supporters, with his knowledge, have allegedly committed corrupt practices, the details of which are stated elsewhere in the election petition. 8. The allegations in paragraph No. 8 are as follows: The affidavit filed by the 1 s t respondent along with the nomination does not contain the EP.4/2006 -: 7 :- true facts. The answers given in various columns of the affidavit format are not true. Several columns have been left blank and incomplete. The callous and indifferent approach shown by the 1 s t respondent in the furnishing of essential information required in the affidavit which forms an integral part of the nomination form itself, is apparent from the manner in which it has been prepared. When there is an incomplete affidavit the Returning Officer ought to have rejected the same owing to its patent defects. A cursory glance through Annexure 1, the nomination form and the affidavit accompanying the same, is sufficient to see that there is “improper acceptance of nomination” by the Returning Officer which is a ground for declaring the election to be void under Section 100(1)(d)(i) of the Act. The cardinal facts not furnished in the affidavit includes inter alia the following:- (i) The name of the spouse, (ii) The name of the dependants, (iii) Bank Account Number, (iv) Registration number of the car. 8A. Section 33 of the 1951 Act provides for presentation of nomination paper and requirements of a valid nomination. The nomination paper is to be in the prescribed form. Sub-section (2) of Section 33A EP.4/2006 -: 8 :- of that Act enjoins that the candidate shall file an affidavit in the prescribed form verifying the information specified in Section 33A(1), along with the nomination paper. This is to give effect to the indendment of Section 33A, recognising the right of the voters, to information. Section 33A(1) enjoins disclosure of information as to whether the candidate is an accused in any case as stated in clause (i) thereof or has been convicted as stated in clause (ii) thereof. Applying Clause (g) of Section 2, the interpretation clause in the 1951 Act, “prescribed” means prescribed by rules made under the Act. Rule 4 of the C E Rules prescribed under the 1951 Act provides that every nomination paper shall be in such one of the Forms 2A to 2E, as may be appropriate. Rule 4A was incorporated in the C E Rules with effect from 3-9-2002 following the introduction of Section 33A in the 1951 Act. The said Rule provides that an affidavit in Form 26 of those Rules shall also be delivered to the Returning Officer along with the nomination paper. Rule 4A of the C E Rules which prescribes the mode of affidavit can also be only for insisting the disclosure of information in terms of Section 33A(1). This is the reason why Form 26 is formulated in the manner in which it is, requiring disclosure of the EP.4/2006 -: 9 :- particulars referable to matters contained in Clauses (i) and (ii) of Section 33A(1) of the 1951 Act. So much so, an affidavit in Form 26 of the C E Rules is not required to contain any disclosure by the candidate regarding debts or any matter in excess of what is required of him to be disclosed in terms of Section 33A(1). 8B. The election petitioner does not have a case that the first respondent has not furnished the information which he was bound to disclose in terms of Section 33A(1) of the 1951 Act. He has no case that the affidavit furnished by the first respondent in Form 26, before the Returning Officer along with his nomination paper, was incomplete. His case is only that these are omissions/suppressions in the affidavit sworn to by the first respondent in terms of the E C Order dated 27-3-2003. 8C. In People's Union for Civil Liberties v. Union of India [(2003) 4 SCC 399 ], Section 33B of the Act, inserted by Act 72/2002, was held as unconstitutional. Dilating on the question of disclosure of assets and liabilities, it was held that Direction No.4 of Paragraph No. 14 of the EC Order EP.4/2006 -: 10 :- dated 28t h June, 2002, in so far as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing of wrong information or suppressing material information, should not be enforced. It was accordingly that the revised E C Order dated 27-3-2003 was issued by the Election Commission clarifying that its earlier direction, in so far as it provided for verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing of wrong information or suppressing material information, is not enforceable as per the decision of the Apex Court in PUCL (supra). Even going by the E C Order, any non-disclosure by the first respondent, of the name of his wife, the name of his dependants, bank account number, registration number of the car and such other details, in the affidavit enjoined by the E C Order would be no ground to reject the first respondent's nomination. 8D. It is further urged on behalf of the election petitioner that the non-compliance of the directions of the Election Commission in the E C Order is to be treated as a situation where the election becomes liable to be set aside on the ground of non-compliance EP.4/2006 -: 11 :- with the provisions of the Constitution, falling within Section 100(1)(d)(iv) of the 1951 Act. While Article 324 is a provision of the Constitution of India, the orders issued by the Election Commission under that provision cannot be treated as provisions of the Constitution. Therefore, any non-compliance of the E C Order cannot be treated as non-compliance with the provisions of the Constitution, to set aside an election under Sub-section (1)(d)(iv) of Section 100 of the 1951 Act. 8E. So much so, any defect in the affidavit enjoined in the E C Order is no ground to set aside an election on the ground of improper acceptance of nomination. 8F. The pleadings in paragraph 8 of the election petition do not, therefore, disclose any cause of action, to be tried. 9. In Paragraph No. 9 of the election petition, it is alleged that the first respondent’s election is liable to be declared void under section 100 (1) (d) (iv) on the ground that he has not complied with the provisions of the Constitution, the 1951 Act, the EP.4/2006 -: 12 :- rules and orders issued under that Act, including the Code of Conduct. The accusations are three in number, pleaded in sub – paragraphs (i), (ii) & (iii) of paragraph No.9. Since they require to be dealt with separately, I do so in the paragraphs that would succeed the immediate two. 9A. Sub-paragraphs 1, 2 and 3 of paragraph no.9 of the election petition contain different allegations to the effect that there are violations of the Code of Conduct. There is no provision in the 1951 Act amounting to a ground for declaring the election to be void on account of the non-compliance of the Code of Conduct. The Code of Conduct is not a provision of the Constitution. Nor is it a provision of 1951 Act. It is also not a rule or order made under the 1951 Act. Section 123 of the 1951 Act does not include the mere violation or non-compliance of the Code of Conduct, among corrupt practices. So much so, the mere allegation that there is a violation of the Code of Conduct would not be a ground to declare an election to be void. If the violation of any of the prescriptions of the Code of Conduct amounts to any of the grounds provided in the 1951 Act for having an election declared as void, then, and only then, would EP.4/2006 -: 13 :- such violation of the Code of Conduct become relevant in an election petition under the 1951 Act. Section 80 of the 1951 Act provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI of the 1951 Act. So much so, an alleged violation of a prescription in the Code of Conduct or lack of adherence to any such prescription can be considered in an election only if the ground or violation urged is also one which is enumerated in the 1951 Act as a ground to declare the election to be void. No ground to set aside an election would be made out, even on proof of any violation of the Code of Conduct, not amounting to a ground under Section 100 of the 1951 Act. 9B. It is apposite in this context to notice that, dilating on the provisions of the 1950 and 1951 Acts, the Apex Court laid down in Lakshmi Charan Sen v. A.K.M.Hassan Uzzaman (AIR 1985 SC 1233 ) as follows: “.......There is no provision in either of these Acts which would justify the proposition that the directions given by the Election Commission have the force of law. Election Laws are self-contained Codes. One must look EP.4/2006 -: 14 :- to them for identifying the rights and obligations of the parties, whether they are private citizens or public officials. Therefore, in the absence of a provision to that effect, it would not be correct to equate with law, the directions given by the Election Commission to the Chief Electoral Officers. The Election Commission is, of course, entitled to act ex debito justitiae, in the sense that, it can take steps or direct that steps be taken over and above those which it is under an obligation to take under the law. It is, therefore, entitled to issue directions to the Chief Electoral Officers. Such directions are binding upon the latter but, their violation cannot create rights and obligations unknown to the Election Law.” 10. The allegations in Paragraph No. 9(i) of the election petition are as follows: “(i). With the knowledge and consent of the 1 s t respondent, the Kerala Kaumudi Daily published two full pages report with color photos on 20.03.2006. There is blatant violation of the Code of Conduct as the same contains promises regarding construction of roads etc. Extending promises in connection with an election is strictly prohibited as per the stipulations in Clause A of para vii sub para vi of Model Code of Conduct. This EP.4/2006 -: 15 :- publication in Kerala Kaumudi is in blatant violation of the said directive as well as other statutory stipulations. Regarding this publication in Kerala Kaumudi there are other irregularities also. The 1 s t respondent at any rate cannot disown the said publication as the same was published for furthering his prospects in the election. Therefore the said publication for all legal purposes has to be treated as a publication done in connection with his election campaign. But there is clear violation of the legal requirements relating to the publications in connection with election in the case of this special publications in Kerala Kaumudi. The publication is termed as 'Impact Feature'. Whether it is an advertisement published on payment made by the candidate/agent or a feature published by Kerala Kaumudi requires to be clarified. The total number of copies printed is not stated in the published manner. The name of the person at whose instance the publication was printed, published and circulated is also not stated in the publication. Petitioner immediately addressed the Chief Election Commissioner, New Delhi, Chief Electoral Officer, Kerala and the District Collector, Trivandrum, regarding the violation of law involved in this publication. The true copies of the said petitions dated 20.03.2006 submitted to the Chief Election Commissioner, New Delhi, Chief Electoral Officer Kerala and the District Collector, Trivandrum are produced herewith and marked as EP.4/2006 -: 16 :- Annexure 2 collectively . Petitioner reliably understands that nearly one lakh copies have been circulated among the voters in Varkala Legislative Assembly Constituency. The cost of the said publication would normally be around 2 to 2.5 lakhs. The photographs have been printed in multi color. The multi color advertisement cannot normally be published by any newspaper without collecting the advertisement fee. But the actual expense involved has not been truly stated by the 1 s t respondent. This is a serious violation of the mandates of Section 77 of the Act. This is a corrupt practice under 123(6).” 10A. Barring the allegation that there is violation of Clause VII(vi)(a) of the Code of Conduct, the only allegation made with reference to the 1951 Act is that the actual expenses for printing the publication in Kerala Kaumudi are not truly stated by the first respondent and therefore, there is violation of the mandate of Section 77 of the Act and hence, it amounts to a corrupt practice in terms of Section 123 (6) of the 1951 Act. Section 123(6) provides that the incurring or authorizing of expenditure in contravention of Section 77 shall be deemed to be a corrupt practice for the purpose of the 1951 Act. Section 77(3) provides that the total of the said expenditure shall not exceed such amount as may be EP.4/2006 -: 17 :- prescribed. It is only the incurring or authorising of expenditure in excess of the prescribed limit that would lead to the commission of a corrupt practice in terms of Section 123(6) of the 1951 Act. The mere allegations that the actual expenses have not been truly stated by the first respondent, which alone is the plea of the petitioner on the basis of Section 77, would not amount to the corrupt practice under Section 123(6). (See Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe ( AIR 1995 SC 2284). There is no plea that the first respondent has exceeded the expenditure prescribed as the limit in terms of Section 77(3) of the 1951 Act. Therefore, no ground for trial of an alleged corrupt practice under Section 123(6) is made out. 10B. There is no allegation in paragraph 9(i) of the election petition as to what is the provision in Section 77 of the 1951 Act that has been violated. That apart, a reading of paragraph 9(i) of the election petition as a whole would abundantly make it clear that it does not contain any specific pleading of the first respondent having expended funds for the publication pleaded therein. All that the election petitioner wants the Court, is to treat that EP.4/2006 -: 18 :- publication as one done in connection with the election campaign for the first respondent because, according to the election petitioner, “the first respondent, at any rate, cannot disown the publication as the same was published for furthering his prospects in the election.”. The election petitioner pleads that the publication referred to by him is termed as an “impact feature” but he does not even assert that it is an advertisement or a publication by the first respondent. All that he has pleaded is “whether it is an advertisement published on payment made by the candidate/agent or a feature published by Kerala Kaumudi requires to be clarified” and “the multi color advertisement cannot normally be published by any newspaper without collecting the advertisement fee”. The nexus between the Kerala Kaumudi daily and the petitioner is also not pleaded. 10C. To cap all these, is the non-disclosure of the contents of the said publication. All that is stated is that it contains certain promises in connection with the election. The so-called publication is not produced, even to show as to what is the alleged violation of the Code of Conduct. The pleadings in paragraph 9(i) of the election petition EP.4/2006 -: 19 :- are too vague to compel the first respondent to stand trial for an election offence, which is essentially quasi