IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 WP(C).No. 31409 of 2006(L) -------------------------------------- CMA.32/2006 of DISTRICT COURT, KASARAGOD OPEA.16/2005 of MUNSIFF COURT, HOSDRUG ................................................ PETITIONER: ------------------ LUCY JOSEPH, W/O. JOSEPH, CHRISTIAN, AGRICULTURIST, RESIDING AT KAKKAKKOOTHIL HOUSE, VELLARIKUNDU, BALAL VILLAGE, HOSDURG TALUK, VELLARIKUNDU POST, KASARAGOD DISTRICT. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.VINOD.V (EDAPPUNATHIL) SRI.T.RAMPRASAD UNNI RESPONDENTS: ----------------------- 1. ELIKUTTY JAMES, W/O. JAMES, CHRISTIAN, AGRICULTURIST, RESIDING AT AIKARA HOUSE, MANKAYAM, BALAL, BALAL VILLAGE OF HOSDURG TALUK, VELLARIKUNDU POST, KASARAGOD DISTRICT. 2. THE RETURNING OFFICER, G/23, BALAL GRAMA PANCHAYATH AND TALUK, STATISTICAL OFFICER, HOSDURG, KANHANGAD SOUTH POST, KASARAGOD DISTRICT. BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R.2 SRI.KODOTH SREEDHARAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No. 31409/2006 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE ELECTION PETITION NO. 16/2005 FILED BY R1 BEFORE THE MUNSIFF COURT, HOSDURG. EXT.P2. COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER HEREIN EL.OPNO. 16/2005 OF MUNSIFF COURT, HOSDURG. EXT.P3. COPY OF THE COUNTER AFFIDAVIT FILED BY R2 IN EL. OP NO. 16/2005 BEFORE THE MUNSIFF COURT, HOSDURG. EXT.P4. COPY OF THE ORDER DT. 31/7/2006 IN EL. OP NO. 16/05 BEFORE THE MUNSIFF COURT, HOSDURG. EXT.P5. COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE DIST. COURT, KASARAGOD. EXT.P6. COPY OF THE JUDGMENT DT. 3/11/2006 IN CMA NO. 32/2006 ON THE FILE OF THE DIST. JUDGE, KASARAGOD. EXT.P7. COPY OF THE FORM 1 IN REGARD TO SWEARING IN OF R1. RESPONDENT'S EXHIBITS : NIL. / TRUE COPY / tga M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 31409 OF 2006 ------------------------------------------ Dated this the 1st day of July, 2008 JUDGMENT Whether an election petition filed to set aside the election under Section 102(1)(d)(i) of Kerala Panchayat Raj Act can be treated as an election petition to set aside the election under Section 102(1)(ca)? Whether without pleading as to how Form 2A furnished under Section 52(1A) of Kerala Panchayat Raj Act is fake, a petitioner is entitled to adduce evidence to prove that the details furnished are fake and even if such evidence is adduced, whether court can set aside the election based on that evidence without pleading? 2. First respondent filed an election petition before Munsiff Court, Hosdurg challenging the election of petitioner to Ward No.XIII of Ballal Gama Panchayat. Petitioner was declared the elected candidate, on the election conducted on 27.9.2005. First respondent was the only other candidate. Election petition was filed to set aside the election on the ground Section 102(1) (d) (i) and 102(1) (d) (iii). The learned Munsiff WPC31409/2006 2 under Ext.P4 order, on the evidence of PWs 1 and 2, RW1 and Ext.A1 to A3 and Ext.X1 to X3(a) set aside the election under Section 102(1)(d)(i) holding that nomination of the petitioner was improperly accepted. First respondent was declared the duly elected candidate. Though petitioner challenged the order before District Court, Kasargod in C.M.A. 32 of 2006, learned District Judge on re-appreciation of evidence confirmed Ext.P4 order and dismissed the appeal under Ext.P6 order. It is challenged in this petition filed under Article 227 of Constitution of India. 3. Learned senior counsel appearing for petitioner argued that there was no pleading that Form 2A furnished by the petitioner was fake. It was pointed out that the challenge against Form 2A submitted by the petitioner as per the pleadings in the election petition was that petitioner did not show properties allegedly owned by her in Ballal Panchayat area, Kozhikode and other districts and she has not filled up some other columns. There was no pleading that petitioner was having any cash or Bank deposit and they were not mentioned in Form 2A or was suppressed. It was argued that without pleading and evidence, trial court and the Appellate Court WPC31409/2006 3 relying on the evidence of petitioner as RW1, found that she was having an account in a Service Co-operative Bank and a deposit of Rs.100/- and that fact was not disclosed in Form 2A and therefore Form 2A is not complete and as a result petitioner should have been disqualified. For that reason it was found that her nomination paper was improperly accepted and consequently set aside the election as provided under Section 102 (1)(d)(i) of the Act. As first respondent was the only other candidate she was declared as the elected candidate. The learned senior counsel argued that under Section 91(a) of the Act details of the material fact which is to be relied on to set aside the election must be pleaded concisely and if the election is to be set aside on the ground that Form 2A does not contain the details of Bank deposit it should have been specifically pleaded and in the absence of pleadings courts below were not justified in looking into the evidence of RW1 and that too in cross-examination when even the election petitioner when examined as PW1 had no such case to set aside the election on that ground. Reliance was placed on the decision of the Apex Court in T.H. Musthafa v. M.P. Varghese (1999 (8) SCC 692) and of this Court in P.C. George v. Returning Officer & WPC31409/2006 4 Ors. (1987 (2) KLT 842) and Balan v. Manoharan Master (1988 (1) KLT 717). It was argued that petitioner was called upon to defend the election petition to set aside the election petition on the grounds of improper acceptance of nomination paper and not on the ground that details furnished in Form 2A was fake and Form 2A was not challenged on the ground that petitioner did not disclose any bank deposit and without necessary pleadings the election cannot be set aside on that ground. It was argued that if there is any omission in Form 2A that is not a ground to set aside the election and election could be set aside only if clause (ca) of 102(1) is attracted and to attract the said clause, details furnished in Form 2A must be fake. Reliance was placed on the decision of this court in Joseph v. Kuriakose (2007 (2) KLT 242). 4. The learned counsel appearing for the first respondent relied on the decision of Apex Court in Shaligram Shrivastava v. Naresh Singh Patel (2003 (2) SCC 176) and argued that even when Representation of People Act was not amended incorporating filing of a statement containing details similar to the one under Section 52 (1A) of Kerala Panchayat Raj Act, Apex Court declared that without filing a proforma as WPC31409/2006 5 directed by the Returning Officer nomination cannot be accepted as the candidate is disqualified. Relying on the decision of Apex Court in People’s Union for Civil Liberties v. Union of India (2003(4) SCC 399) it was argued that it is to safeguard the purity of election and the sanctity of the democratic system Section 52(1A) was introduced and when Form 2A furnished by the petitioner as provided under Section 52(1A) is not complete and the details of Bank deposit was suppressed as found by the courts below, petitioner is disqualified and acceptance of her nomination paper was improper and on that ground election is liable to be set aside. 5. The election was set aside by the learned Munsiff only on the ground under Section 102(1)(d)(i). The order was also upheld by the learned District Judge on the same ground. Therefore, in this petition it is not necessary to consider whether the election is liable to be set aside on any other ground. 6. The election petition was allowed and the election was set aside on the ground under Section 102(1)(d)(i) for the sole reason that Form 2A furnished by the petitioner as provided under sub-section (1A) of Section 52 was defective and hence acceptance of the nomination paper of the petitioner was WPC31409/2006 6 improper and the nomination paper should have been rejected. Specific finding of the trial court and the appellate court is that Form 2A furnished by the petitioner does not disclose any cash or Bank deposit as admitted by the petitioner at the time of her evidence as RW1. Learned counsel appearing for first respondent vehemently argued that when evidence of petitioner as RW1 establishes that she has an account in Maloth Service Co-operative Bank and this fact was suppressed in Ext.X2(a) and X3(a) Form 2A submitted by the petitioner and Form 2A is a fake one and therefore acceptance of nomination paper with fake Form 2A is improper and therefore as rightly found by the courts below, her election is liable to be set aside for improper acceptance of the nomination paper. The learned counsel also argued that when there are only two candidates and the nomination paper of petitioner was improperly accepted which should have been rejected, only first respondent is the remaining candidate and therefore without any other evidence court is justified in declaring first respondent as the elected candidate and in the circumstances of the case there is no necessity to prove that by improper acceptance of the nomination paper, election of the petitioner was materially WPC31409/2006 7 effected. Reliance was placed on the decision of the Apex Court in Durai Muthuswamy v. N. Nachiappan and others (1973 SC 1419). Reliance was also placed on the decision of the Apex Court in Shaligram Sreevasthava’s case (supra) where the Apex Court upheld the rejection of the nomination paper for the failure of the candidate to appear for scrutiny and also for not submitting the proforma duly filled up as directed by the Returning Officer. Relying on a decision of the learned Single Judge in Arshad v. Nellancheri Mustaffa (2007 (3) KLT 785) it was argued that when petitioner did not fill up the column regarding the cash and money and did not show the bank deposit in Form 2A, it is to be taken that details furnished in Form 2A is a fake. Learned counsel argued that evidence of RW1 relied on by the courts below can be looked into, when it is proved that petitioner had Bank deposit and she either suppressed that fact or failed to disclose the details of the deposit in Form 2A. It was argued that in the light of the evidence, courts below rightly set aside the election of the petitioner and declared first respondent as the elected candidate. 7. Section 52(1A) was introduced in the parent Act by WPC31409/2006 8 The Kerala Panchayat Raj (Fifth Amendment Act) Act 30 of 2005. Section 102 was also thereby amended introducing clause (ca) in Section 102(1) of the Act. Section 52(1A) reads:- “Every candidate submitting nomination under sub-section (1) shall not be deemed to be qualified to be elected to fill that post unless he submits, along with such nomination, the details regarding his educational qualification, criminal cases in which he is involved at the time of submission of nomination, property owned by him and other members of his family, liabilities including arrears due from him to any Public Sector Undertaking or Government or Local Self Government Institutions and whether disqualified for defection under the Kerala Local Authorities (Prohibition of Defection) Act, 1999, in the form and manner as may be prescribed.” 8. Consequent to that amendment, Rules framed under the Kerala Panchayat Raj (Conduct of Election) Rules, 1995 was amended incorporating sub rule 2(a) which reads as follows:- WPC31409/2006 9 “ ‘Act’ means the Kerala Panchayat Raj Act, 1994 (13 of 1994/7).” 9. Rule 52(1A) of the Act provides for submitting the details regarding the “educational qualification, criminal cases in which he is involved at the time of submission of nomination, property owned by him and other members of his families, liabilities including arrears due from him to any public sector undertaking or government or local self government institutions and whether disqualified for defection under Kerala Local Authorities (Prohibition of Defection) Act, 1999. It is to be submitted in the form and manner as prescribed. Sub rule 2(a) of Rule 6 of Kerala Panchayat Raj (Conduct of Election) Rules provide that the details are to be submitted in Form No.2A. 10. Form 2A is the prescribed form as provided under Section 52(1A). The respective columns are to be filled up and submitted by the candidate along with his nomination paper. It is to be born in mind that Section 52(1A) was introduced in the parent Act on 28.8.2005 just prior to the election. Petitioner submitted his nomination paper on 5.9.2005. Ext.X3(a), the Form No. 2A, is dated 5.9.2005. It was also submitted on the same day. Ext.X3(a) was not complete as petitioner had filled up WPC31409/2006 10 only the columns relating to her ornaments and immovable property. Realizing the defect, petitioner furnished Ext.X3 Form No.2A on the very next day on 6.9.2005. Therefore, though there are defects in Ext.X3(a), it is not very relevant in view of Ext.X3 Form No.2A furnished by the petitioner. In Ext.X3 Form No.2A, petitioner had filled up all the details except with regard to the cash in hand. Column regarding cash was kept blank. In the column regarding details of deposits in bank and non banking institutions, petitioner recorded them as Nil. It is based on the evidence of petitioner as RW1. Courts below found that even though petitioner is having a deposit of Rs.100/- in Maloth Service Co-operative Bank she did not declare that deposit and therefore Form No.2A is incorrect and there is defect in Form No.2A and hence acceptance of that nomination paper was improper. Trial court also found that the non mentioning of that deposit is suppression of fact. 11. Section 52(1A) provides for submission of the details provided therein in the prescribed form. The Act does not provide that defect in Form No.2A is a ground to set aside the election. Under clause(ca) of sub-section (1) of Section 102, election could be set aside if the details furnished by the elected WPC31409/2006 11 candidate in Form No.2A were fake. It does not provide that if the details furnished are not correct the nomination paper is to be rejected or the election is liable to be set aside. Though Section 35 provides the disqualifications, incorrect filling up of Form No.2A is not a reason for disqualification. Section 55 of the Act provides for scrutiny of nominations. Sub section 2 of Section 55 provide the grounds for rejection of the nomination paper. Under clause (b) of Section 55 if there has been a failure to comply with any of the provisions of Section 52 and 53 the nomination paper could be rejected. In spite of introduction of Section 52(1A) in the parent Act, Section 52(1A) was not incorporated in sub section 2(b) of Section 55. Hence if provisions of Section 52(1A) was complied by the candidate by submitting Form 2A, his nomination paper cannot be rejected. 12. Learned Single Judge in Arshad v. Nellancheri Mustafa (2007 (3) KLT 785) considered the effect of furnishing false details in Form No.2A and it was held that if any candidate fails to furnish any one of the details or furnishes a detail which is false to his knowledge, he is not qualified for chosen to fill a seat in a Panchayat in any level. His Lordship held : WPC31409/2006 12 “If any candidate fails to furnish any one of the details or furnish a detail which is false to his knowledge he is not qualified for chosen to fill a seat in a Panchayat in any level. It is only furnishing a false detail. That makes the declaration a fake one. Omission to furnish any one of the details also will have the same effect. Ext.X2 is the nomination paper filed by the first respondent. Ext.X3 is the details furnished by him in Form No.2A along with the nomination paper. The respondent suppressed the details of liability due from him to the K.S.F.E. And hence a fake one. So he cannot be deemed to be qualified to contest the election, as enjoined under S.52(1A) of the Act.” But in that case also, in the election petition there was no pleading of violation of the provisions of Section 52(1A). It was therefore held that election cannot be set aside on the ground under Section 102(1)(ca). The learned Judge, held: “Even though there is evidence to prove that the declaration filed by the 1st respondent along WPC31409/2006 13 with the nomination was fake one that alone is not sufficient to grant relief to the petitioner in the Original Petition. The petitioner has got another hurdle to cross. I had already discussed about the averments in the Original Petition. A reading of the election petition shows that the one and only ground raised in the Election Petition is that the first respondent was disqualified under S.34(i)(j) of the Act to contest the election. The omission to furnish the details under S.52(1A) is not a disqualification though such a person shall not be qualified to fill the post. There is clear distinction though very subtle between disqualifications under S.34 and not being qualified under S.52 (1A) of the Act. There is total absence of averments to attract violation of S.52 (1A) of the Act in the Original Petition. In the affidavit filed along with the Original Petition also, there is no averment to the effect that the 1st respondent concealed any material WPC31409/2006 14 fact in Form No.2A and hence the details furnished by him under S.52(1A) were fake. The petitioner gave oral evidence. He filed affidavit in lieu of the chief examination. There was no statement in the affidavit filed in lieu of the chief examination to the effect that 1st respondent concealed any material facts in the details in Ext.X3. He was again orally examined in chief. Exts.XI to X3 were marked. Even at that time the petitioner did not depose that the 1st respondent concealed any material fact in the details in Ext.X3. So there is absolute lack of pleadings on this point though there is evidence to prove that fact.” 13. The effect of non compliance with the provisions of Section 52(1A) and whether it is a ground to set aside the election was considered by this Court in Joseph v. Kuriakose (2007 (2) KLT 242). It was held: “If the nomination paper of first respondent could not have been rejected by Returning Officer on any of the the said grounds, it cannot WPC31409/2006 15 be said that acceptance of his nomination was an improper acceptance which is a ground for setting aside election as provided under S.102 (1)(d)(i). Even according to petitioner, first respondent was not disqualified or not qualified for being chosen as a member of Panchayat. The only contention was that as first respondent failed to comply with the provisions of Section 52(1A) and so nomination paper should have been rejected. There was no case of any other violation of Section 52 or 53 except the provisions of sub-section(1A) of S.52. If the candidate submitted a nomination paper and along with the nomination paper, furnished Form 2A with the details contemplated therein, Returning Officer is not competent to reject the nomination paper. If that be so, it cannot be a ground to set aside election under Section 102 (1)(d)(i)” 14. As stated earlier there is no pleading that details furnished in Form No.2A submitted by petitioner were fake and WPC31409/2006 16 so the election is to be set aside under Section 102(1)(ca) of the Act. On the other hand pleading was only that Form No.2A furnished by the petitioner under sub-section (1A) of Section 52 of the Act contains incorrect or false details. As rightly pointed out by the learned senior counsel, the challenge against Form No.2A are pleaded in paragraph 4 and 5 of the election petition. What was pleaded in paragraph 4 was that petitioner has not filled up or gave all the information required to be given under Rule 52(1A) of Kerala Panchayat Raj (Conducting of Elections) Rules and the Returning Officer improperly accepted the nomination paper even though in Form 2A the details were not fully furnished. The pleading was as follows: “The first respondent has not filled up or gave all the informations required to be given under rule 6(2A) of the Kerala Panchayath Raj (conducting of elections) Rules. The scrutiny of the nomination papers were conducted on 8.9.2005. The second respondent has accepted the nomination papers of the petitioner and satisfied that all the information required to be given along with the nomination paper in Form WPC31409/2006 17 2A were furnished. The second respondent has also improperly accepted the nomination paper of the first respondent. The information to be furnished in Form 2A of Rule 6 were not fully furnished and submitted the nomination paper. In spite of that the second respondent illegally and improperly accepted the nomination paper of the first respondent. The petitioner has pointed out the defects in the nomination paper and form 2A submitted by the first respondent and pointed out that the nomination paper cannot be accepted. But the second respondent ignored all the objections of the petitioner and accepted the nomination paper at the time of scrutiny. The first respondent has not furnished full information regarding the properties situate in Kerala State. The first respondent has also not filled up certain other columns, serial numbers in the nomination paper and form 2A. ” WPC31409/2006 18 The specific pleading in paragraph 5 is as follows: “ The informations to be furnished in form 2A are mandatory and any omission or laches or suppression of the fact are serious. So it is improper and illegal to accept the nomination of a candidate which lacks the information sought in form 2A, Rule 6. The first respondent own property in Hosdurg Taluk, Balal Panchayath area and also in Kozhikode and other districts. She has suppressed the fact of owning properties in different places deliberately for making an unlawful gain.” What was pleaded was only with regard to the non disclosure of the properties owned by the petitioner. The case was that petitioner owns property in Hosdurg Taluk, Ballal Panchayat area and also in Kozhikode and other districts and she suppressed the fact of owning properties in different places deliberately for making an unlawful gain. There is no whisper anywhere in the election petition that petitioner was having any cash in hand or Bank deposit and the details of Bank deposits were suppressed by the petitioner in Form No.2A and therefore WPC31409/2006 19 particulars furnished in Form No.2A are false. Even when first respondent was examined as PW1, she has no case that petitioner was having any Bank deposits and that was suppressed in Ext.X3 Form No.2A or that the details furnished in Form No.2A were fake. 15. Sub rule 2 of Rule 9 expressly provides that copy of the details submitted by the candidate under sub rule 2a of Rule 6 shall be published as provided under sub rule 1 of Rule 9 and in addition copies thereof shall be issued to other candidates and media free of cost. In such circumstances if the details furnished are fake or details are suppressed, petitioner has sufficient opportunity to find out and plead the same in the election petition. Moreover what was pleaded in the election petition was that all the defects in Form No.2A were known to the election petitioner at the time of scrutiny of nomination paper and the defects were pointed out to the returning officer but the objection was ignored or rejected and the nomination paper was improperly accepted. There was no case that any detail which was not known to the election petitioner came to her knowledge later. In such circumstances it was incumbent upon her to plead the suppression of details of bank deposit in WPC31409/2006 20 the Form No.2A furnished by the petitioner if in fact Form No.2A is challenged on suppression of that fact. Therefore, as rightly pointed out by the learned senior counsel, first respondent