IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 El.Pet..No. 7 of 2011() ----------------------- PETITIONER ------------------ C MOHANACHANDRAN, AGED 60 YEARS S/O.SRI.CHELLAPPAN “SUDHA BHAVAN”, MURUKUMPUZHA PO THIRUVANANTHAPURAM – 695 302 BY ADV. SRI.JACOB VARGHESE (SR), S.M.PREM, K P SANTHI & NIJOY P K RESPONDENTS --------------------- 1. KOLIAKODE N KRISHNAN NAIR AGED 73 YEARS, S/O.SRI.NEELAKANTA PILLAI VILAKOTTUKONAM HOUSE, KOLIYAKODE PO THIRUVANANTHAPURAM 695 607 2. SASI R CHERAMAN, AGED 41 YEARS S/O.SRI.RAGHAVAN, VAYALARIKATHU VEEDU THUMBANOOR, PANACODE PO THIRUVANANTHAPURAM – 695 542 3. SIVAPRASAD, AGED 41 YEARS S/O.SREEDHARAN PILLAI BIJU BHAVAN, (CHITTEDATH VEEDU) THENGUMKONAM, PULIMATH THIRUVANANTHAPURAM 695 612 4. SHAJAHAN, AGED 40 YEARS, S/O.MUHAMMED KANNU YASEEN MANZIL, PERAYATHUMUGAL PIRAPPANCODE PO, THIRUVANATHAPURAM 695 607 5. KRISHNAN NAIR, AGED 71 YEARS S/O.PARAMESWARAN PILLAI ARUNIMA, VEIYLOOR, MURUKKUMPUZHA PO MANAGALAPURAM, THIRUVANANTHAPURAM – 695 302 EP 7/11 -2- 6. P BALAKRISHNA PILLAI AGED 70 YEARS, S/O.K.PADMANABHA PILLAI BHARATHAM, ALUMPURAM LANE MUDAVANMUGAL POOJAPPURA, THIRUVANANTHAPURAM 695 012 7. P SURESHKUMAR, AGED 32 YEARS, S/O.SRI.G.PUSHPANGADAN MEKKUMKARA KUNNIL VEEDU, MEENMUDU IRINJAYAM PO, NEDUMANGAD, THIRUVANANTHAPURAM – 695 561 8. SALEENA PJ, AGED 32 YEARS, W/O.SRI.N K VIJAYAN NAGAVARA PUTHEN VEETIL PRAKKANAM PO, PATHANAMTHITTA 689 643 ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE )( ADV.NAGARAJ NARAYANAN, SAIJO HASSAN, )( PRATHAP PILLAI, BINOJ C.AUGUSTINE, )( FOR R1 NOOHU KUNJU SAHIB, I J AUGUSTINE, )( SEBIN THOMAS & V K RAFEEK )( THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------------------------- Election Petition No.7 of 2011 ------------------------------------------------------- Dated this the 29th day of November 2011 Judgment The petitioner calls in question the return of the first respondent in the Assembly Elections held on 13.04.2011 to the Kerala Legislative Assembly from Vamanapuram Constituency. The petitioner and respondents 1 to 8 contested the election held on 13.4.2011. The first respondent secured 57381 votes and the petitioner 55145. Therefore, the first respondent was declared elected. 2. Shorn off unnecessary details, the election of the first respondent is assailed on two grounds, namely : 1) The first respondent's nomination papers were defective. The affidavit filed by him pursuant to Rule 4A of the Conduct of Election Rules 1961, was not properly attested and that is fatal. EP 7/2011 2 2) The first respondent had not correctly filled up Form 26 as stipulated in Rule 4A of the Conduct of Election Rules 1961 and as prescribed by the Election Commission. 3. The statement of allegations and material facts are contained in paragraphs 12 to 19 and Ground H of the petition. To summarise the relevant facts, the challenge relates to the failure on the part of the first respondent to disclose certain assets of his wife and himself and that of the members of his family, which amounts to non-compliance with the mandate laid down in the decision in Peoples Union for Civil Liberties v. Union of India (2003) 4 SCC 399) and the consequent notification issued by the Election Commissioner. Regarding the other ground namely, defective attestation, it is contended that there are two affidavits as contemplated under the Act and they have to be properly attested by the Notary. The attestation in the case on hand is not in accordance with the Notaries Act and Rules. The notarisation in the present EP 7/2011 3 case falls short of the statutory requirements and the attestation cannot be said to be proper and valid. It is, therefore, alleged that the above two defects are fatal and they make the nominations filed by the first respondent defective. The improper acceptance of the nomination, therefore, was in violation of the provisions of the Representation of the People Act, 1951 and that has materially affected the election of the first respondent in the Constituency. In fact, the grounds relied on are 100(1)(d)(i) and 100(1)(d)(iv) of the Representation of the People Act, 1951 (hereinafter referred to as “the Act”). 4. The first respondent has filed a preliminary objection, challenging the maintainability of the petition, on the ground that it does not disclose material facts, that it does not disclose any cause of action and also that there is no triable issue at all. It is pointed out that the respective affidavits have been properly attested and there is no particular form for attestation. No form as such is prescribed either under Rule 4A of the Conduct of Election EP 7/2011 4 Rules or as per Form 26. Even assuming that there is some defect in the attestation, there is substantial compliance with the relevant rules and no prejudice is caused to any of the candidate by the infirmities. It is further contended that defective affidavit is not a ground on which an election can be set aside as per Section 100 of the Act. As regards disclosure of assets and contents of Form 26 are concerned, it is pointed out that the first respondent had made a full and complete disclosure of his and his relatives' assets as contemplated under the Act and the relevant Rules and the allegations to the contrary are incorrect. It is pointed out that even assuming there is some omission in filling up Form 26, that too does not provide a ground for setting aside the election. On the above contentions, it is pointed out that the election petition does not disclose any cause of action and it has to be rejected at the threshold itself. 5. Sri.K.Ramakumar, learned Senior Counsel appearing for the first respondent pointed out that the EP 7/2011 5 petition does not furnish the material facts regarding deficiency in attestation of the affidavit as contemplated in Rule 4A of the Conduct of Election Rules. Highlighting on this aspect, it was pointed out that the details as to how the attestation is defective and what are the provisions of law violated, are not seen stated in the petition. It was contended that the petitioner is bound to disclose those material facts so that the first respondent may be put on alert as to what exactly are the defects, to enable him to furnish an effective reply. Merely stating that the attestation is not proper and it is not in accordance with the Notaries Act and Rules, will not be sufficient to meet the requirements of pleadings in an election petition. In support of his contention, the learned counsel relied on the decision in Nandiesha Reddy v. Kavitha Mahesh (2011) 7 SCC 721) and Sudarsha Avasthi v. Shiv Pal Singh (2008) 7 SCC 604). It was also urged that even if there is any violation of the rule relating to attestation of the affidavit, EP 7/2011 6 accompanying Form 4A, that does not enable the petitioner to challenge the return of the first respondent as it is not a ground provided under the Act to set aside an election. 6. As regards the non-disclosure of assets, according to the learned counsel, even if all the allegations are taken as true, there is no violation of any of the provisions of the Act or Rules framed thereunder. Merely because the form issued by the Election Commissioner is not properly filled up or there are certain omissions in filling up the form does not give rise to a ground to challenge the election. Neither Section 33 nor Section 36 of the Act provides for rejection of nominations as a consequence of the infirmity in not providing information as per From 26. Therefore, the election cannot be challenged on that ground also. In support of the said contention, the learned Senior Counsel relied on the decisions in Mani.C.Kappan v. K.M.Mani (2007(1) KLT 228), Anil.V.Babu v. Babu.M.Pallissery (2006(4) KLT 809) and an unreported EP 7/2011 7 decision by this court in EP No.4/09. It is pointed out that the Representation of the People Act, 1951 and the Rules framed thereunder, is a self contained code and courts cannot import other grounds to set aside an election, which are not stipulated in the Act. In support of the said proposition, the learned counsel relied on the decision in Charanlal v. Nandakumar Bhatt (AIR 1973 SC 2464). 7. In reply, the learned counsel for the petitioner contended that paragraph 10 of the petition gives details of the defects in the attestation of the affidavit and that discloses the necessary particulars. This is further highlighted in ground J of the petition. It was, therefore, contended that the complaint that the material facts regarding the allegation are not furnished, is incorrect. 8. The learned counsel for the petitioner, then pointed out the circumstances under which Form 26 mentioned in Rule 4A of the Conduct of Election Rules came to be in its present form. The necessity for a candidate to disclose his personal details was highlighted EP 7/2011 8 in the decision reported in Union of India v. Association for Democratic Reforms (2002) 5 SCC 294) wherein the Apex Court held that the electorate is entitled to know the details of the candidate for whom they are going to vote. Pursuant to that decision, Sections 33A, 33B of the Act and Rule 4A of the Conduct of Election Rules with Form 26 were introduced by amending the Act of 2002. Those amendments were challenged before the Apex Court and the Apex Court struck down Section 33B and directed the Election Commission to prescribe the form that is contemplated under Rule 4A of the Conduct of Election Rules, exercising its powers under Article 324 of the Constitution. It is pursuant to that direction that Form 26 as it now stands, has been issued by the Election Commission. Therefore, it is contended that the importance of Form 26 cannot be lost sight of and merely because it is not specifically enumerated as a ground for setting aside election, it cannot be ignored. It is also contended that the EP 7/2011 9 notifications issued by the Election Commission have statutory force and they will be deemed to form part of the Act and the Rules framed thereunder. 9. To the contention taken by the first respondent that the objections now raised had not been taken before the Returning Officer, the learned counsel for the petitioner pointed out that if the nomination was defective and could not have been accepted, the mere fact that no objection had been raised, is not a ground to throw out the election petition. The learned counsel cautioned this court that the High Court, while exercising its jurisdiction under Section 81 of the Act, is not sitting in appeal against the order of the Returning Officer, but, is exercising its original jurisdiction. In support of the above contention, the learned counsel relied on the decisions in K.Prabhakaran v. P.Jayarajan (AIR 2005 SC 688), Uttamrao Shivdas Jankar v. Ranjit Sinh Vijay Sinh Mohite Patil (2009 SC 2975) and S.M.Banerji v. EP 7/2011 10 Srikrishna (1960 SC 368). Finally, it was contended by the learned counsel for the petitioner that even assuming that the defect or omission in Form 26 does not furnish a cause of action, that is not so in the case of the infirmity in the attestation of the affidavit, which stands on a different footing. At any rate, the learned counsel pointed out that as regards the contents of the affidavit and also the question as to whether it has been properly attested, are all matters to be decided after taking evidence and there is no justification for contending that the petition does not disclose any cause of action and it has to be summarily rejected. 10. Before going into the rival contentions, certain aspects may be noticed. It is well settled that the Representation of People Act is a self contained code. See the decision in Charanlal v. Nandakumar Bhatt (AIR 1973 SC 2464). An election is not to be easily interfered with and a petition challenging the election of a candidate EP 7/2011 11 has to be strictly in terms of the provisions of the Act and Rules and can only be on grounds provided for under the Act. It is also well settled that the pleadings in the election petition are to be construed strictly and all material facts should be disclosed in the petition itself. In the decision in M.Chandra v. M.Thangamuthu (2010) 9 SCC 712), the Apex Court has held as follows : “79. It is a settled legal position that an election petition must clearly and unambiguously set out all the material facts which the petitioner is to rely upon during the trial and it must reveal a clear and complete picture of the circumstances and should disclose a definite cause of action. In the absence of the above, an election petition can be summarily dismissed. To see whether material facts have been duly disclosed or whether a cause of action arises, we need to look at the averment and pleadings taken up by the party. EP 7/2011 12 80. In V.S.Achuthanandan v. P.J.Francis (1999) 3 SCC 737), it was held that failure to plead material facts is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition.” 11. Before going further, it will be useful to refer to the provisions relevant for the present case. 12. Chapter VI of the Act deals with disputes regarding election. Section 79 in Part VI of the Act is a definition clause. Section 80 stipulates that no election shall be called for in question except by an election petition presented in accordance with the provisions of the Act. Section 80A empowers the High Court to try an election petition. Section 81 deals with presentation of petition and Section 82 with parties to the petition. Section 83 deals with the contents of the petition. Section 86 deals with trial of election petitions and 87 deals with the procedure to be followed in the trial of election petitions. The next relevant EP 7/2011 13 provision is Section 100, which provides the grounds on which an election can be declared to be void. 13. Sections 33 and 36 which fall within Part V of the Act deal with presentation of nomination papers and the requirements of a valid nomination. Section 36 deals with scrutiny of nominations and grounds for rejection of nominations. 14. First, one may refer to the grounds on which an election can be assailed. That is provided for in Section 100 of the Act which reads as follows : “100. Grounds for declaring election to be void – (1) Subject to the provisions of sub-section (2) if the High 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 the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963) ; or (b) that any corrupt practice has been committed EP 7/2011 14 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, insofar 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 (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, EP 7/2011 15 the High Court shall declare the election of the returned candidate to be void. (2) If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the High Court is satisfied -- (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent of the candidate or his election agent; (clause (b) omitted by Act 58 of 1958) (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election and (d) that in all other respects, the election was free from any corrupt practice on the part of the EP 7/2011 16 candidate or any of his agents, then, the High Court may decide that the election of the returned candidate is not void.” The case on hand falls under Section 100(1)(d)(i) and 100 (1)(d)(iv) of the Act. A reading of the above provision will clearly show that it is not sufficient for the petitioner to establish that the nomination has been improperly accepted or that any of the provisions of the Act or Rules has been violated but, he will have to, in addition, also prove that by the said Act, the result of the election of the first respondent has been materially affected. 15. First, the issue regarding the omissions in Form 26 shall be considered. The petitioner has narrated in the petition, especially in paragraphs 15, 16 and 18 of the petition, the various assets which have not been disclosed by the first respondent in Form 26. It is further alleged that the nomination ought not to have been accepted by the Returning Officer and the acceptance, at any rate, was improper. EP 7/2011 17 16. As already noticed, Sections 33A and 33B of the Act, Section 4A of the Conduct of Election Rules and Form 26 were introduced pursuant to the decision in Union of India v. Association for Democratic Reforms (2002) 5 SCC 294). The Apex Court found Section 33B to be totally inadequate to meet the requirements laid down in its earlier decision and in fact, Section 33B was a mockery and the provision was struck down. While doing so, by the decision in Peoples Union for Civil Liberties v. Union of India (2003(4) SCC 399), the Apex Court directed the Election Commission to exercise its powers under Article 324 of the Constitution of India and issue a proper form containing all necessary details. Thus, Annexure II form came to be issued. 17. The complaint of the petitioner is that the various assets made mention of by him in the petition have not been included in the form submitted by the first respondent. The first respondent would say that those EP 7/2011 18 allegations are untrue and in addition to that, he would also submit that even assuming there are some omissions, that is not a ground to set aside the election. 18. If one looks at Section 33A of the Act, it can easily be seen that it is a mandatory requirement. Section 33 deals with filing of nominations. Section 36, as already noticed, deals with scrutiny of nominations and grounds on which rejection of nominations can be made. It is significant to notice that S.36 contemplates rejection of nominations only for violation of Sections 33 and 34 of the Act and certain provisions of the Constitution. Section 36 of the Act does not provide for a ground to reject a nomination on the basis that there are omissions or false statements contained in Form No.26 as prescribed by the Election Commission. 19. May be that Form No.26 was prescribed and brought out by the Election Commission, pursuant to the directions of the Apex Court. But the question is whether the omission to furnish relevant details or false statements EP 7/2011 19 contained therein provide a ground for setting aside an election. As already noticed, in order to ascertain the grounds on which an election can be set aside, one has to refer to Section 100 of the Act. 20. It will be interesting at this juncture to note one aspect. Section 102(1)(ca) read with Section 52(1A) of the Kerala Panchayat Raj Act and Section 178(1)(ca) read with Section 108(1A) of the Kerala Municipality Act contain provisions to set aside the election of a candidate if he either fails to provide a form similar to Form 26 as provided under the Conduct of Election Rules or furnishes false or incomplete statements therein. Surprisingly enough, there is no such provision in the Representation of the People Act. 21. Being a self contained code, it will not be possible for this court to import grounds which are not available under Section 100 of the Act or the Rules framed thereunder, to set aside the election of a returned candidate. The challenge to an election thus remains EP 7/2011 20 confined to the grounds available under Section 100 of the Act. Therefore, if the petitioner wants to assail the election of the first respondent, he has to urge and establish one of the grounds falling within Section 100 of the Act. In the case on hand, the stand of the petitioner is that Form No.26 submitted by the first respondent is incorrect, making his nomination defective. Such a nomination could not have been accepted and therefore, improper acceptance falls within Sections 100(1)(d)(i) and 100(1)(d) (iv) of the Act. 22. The issue as to whether the furnishing of a defective Form 26 can be a ground for setting aside an election was considered in the decision Mani.C.Kappan v. K.M.Mani (2007(1) KLT 228). In the said decision, it was held as follows : “14. In PUCL (supra), S.33B of the Act, inserted by Act 72/2002 was held as unconstitutional. Dilating on the question of disclosure of assets EP 7/2011 21 and liabilities, it was held that Direction No.4 of Paragraph No.14 of the EC Order dated 28th 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. Accordingly, Annexure-A revised EC Order dated 27.3.2003 was issued clarifying that the earlier direction of the Election Commission 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 is not enforceable as per the decision of the Apex Court in PUCL (supra). Even going by the EC Order, even if the affidavit field by the respondent following the EC Order did not disclose the dues allegedly outstanding EP 7/2011 22 from him to the Tourism Department, the same could not have led to the rejection of the nomination paper. 15. It is further urged on behalf of the election petitioner that the non-compliance of the directions of the Election Commission is to be treated as a situation where the election becomes liable to be set aside on the ground of non-compliance with the provisions of the Constitution, falling within S.100(1)(d)(iv) of the 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 EC Order cannot be treated as non- compliance with the provisions of the Constitution, to set aside an election under sub- s.(1)(d)(iv) of S.100 of the Act. EP 7/2011 23 23. The issue was again considered by this Court in an unreported decision (EP No.4 of 2009) wherein it was held as follows : “8. The case is that one item of property owned by he respondent and his wife not disclosed in Annexure C filed along with the nomination paper and it is in violation of the order dated 27.3.2003. In view of the decision in Mani.C.Kappan's case, violation of the said order is not a ground under Section 100(1)(d)(iv) to set aside the election. Moreover, the learned counsel appearing for the petitioner