IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 CRP.NO. 177 OF 2009() --------------------- {IN A.S.NO.360/2006 OF THE DISTRICT COURT, KOTTAYAM OP(ELE.) NO.7/2005 OF THE MUNSIF'S COURT, KANJIRAPPALLY} .................... REVN. PETITIONER(S): APPELLANT/RESPONDENT ------------------------------------------------------- RAJEEV ALEXANDER, S/O.ALEXANDER, KOKKODATHU HOUSE, MUNDAKKAYAM VILLAGE, KANJIRAPPALLY TALUK. BY ADV. SRI.BECHU KURIAN THOMAS SRI.ROSHEN.D.ALEXANDER SMT.NISHA JOHN RESPONDENT(S): ADDITIONAL RESPONDENT -------------------------------------------------- SEYNULLABDEEN, AGED 48 YEARS, S/O.ABUBAKER, ATTUPARAMBIL, MUNDAKKAYAM VILLAGE, KANJIRAPPALLY TALUK. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/11/2010, THE COURT ON 14/12/2010, PASSED THE FOLLOWING: CRP.NO. 177 OF 2009 :: ORDER ON I.A.Nos.669/09 & 2450/10 IN CRP.NO. 177 OF 2009 DISMISSED. Sd/- (S.S.SATHEESACHANDRAN) 14.12.2010. JUDGE sk/- //true copy// P.S. To Judge. C.R. S.S.SATHEESACHANDRAN, J. ----------------------------------------------- C.R.P.No.177 of 2009 ----------------------------------------------- Dated this the 14th day of December, 2010 O R D E R The returned candidate, whose election as a member to a panchayat was set aside in an election petition, has filed this revision challenging the concurrent decision rendered by the two courts below declaring his election as void under Section 102(1) (ca) of the Kerala Panchayat Raj Act, 1994 {hereinafter referred to as “the Act”}. Though the election of the revision petitioner was challenged on various grounds, the only ground on which his election was set aside and that alone surviving for consideration in the revision relates to the question whether Form 2A tendered by the revision petitioner with his nomination paper to contest the election was 'fake'. He had suppressed material facts relating to the accounts maintained by him and his wife in C.R.P.No.177 of 2009 :: 2 :: banks withholding the outstanding sums in deposits in such accounts in the above Form, was the allegation imputed and which was held to be so by the courts below to declare his election as void. If such allegation were true whether non- furnishing of correct particulars of the deposits in bank accounts would render Form 2A fake, is the question posed for consideration. 2. Election petition was preferred by an elector from the constituency, Ward No.18 of Mundakayam Grama Panchayat from which the revision petitioner was elected as the returned candidate in the General Elections held to the Panchayats in 2005-06. Pending the appeal preferred by the revision petitioner against the decision in the election petition declaring his election as void, petitioner in the election petition passed away and another elector in the same constituency got himself impleaded as a respondent in such appeal. C.R.P.No.177 of 2009 :: 3 :: However, in the revision, after accepting notice, that respondent remain absent. 3. I heard the learned counsel for the revision petitioner. Pointing out the various grounds raised in the petition to impeach the election, a copy of which is produced with the revision as Ext.A1, the learned counsel urged that all other grounds except the non-furnishing of accurate particulars of deposits in the bank accounts by the candidate and his wife with the nomination paper, set up to impeach his election have been found meritless. In the present era of internet banking, where anyone who knows the account number of another can easily make deposits in the account of the other, it is the submission of the counsel, the default or failure of a candidate to state the accurate particulars of his deposits and that of his wife in Form 2A tendered with the nomination paper is not at all sufficient C.R.P.No.177 of 2009 :: 4 :: to conclude that such Form 2A tendered is fake as spelt out by Section 52 A of the Act. At any rate, furnishing of inaccurate particulars over deposits in bank accounts unless it is established that it was wilful or deliberate by no stretch of imagination can be construed to hold that Form 2A tendered with the nomination paper with such inaccurate particulars would render it fake, is the further submission of the counsel. All other grounds to impeach the election of the returned candidate which included imputations that he is a contractor against whom vigilance cases are pending, that he has suppressed ownership of motor vehicles,three lorries, and he and his wife are defaulters to the Government – State and Central–, and local bodies, have all been found meritless and negatived by both the courts below, but, inaccuracy in the statement given in Form 2A over the deposits in bank accounts maintained by C.R.P.No.177 of 2009 :: 5 :: him and his wife which was set up as yet another ground to challenge the election, was approved by the courts below, to set aside his election concluding that such inaccuracy over deposits would render his Form 2A fake, submits the counsel. Inaccuracy or incorrect particulars will not render an instrument fake and it must be shown that the mischief sought to be avoided by the submission of Form 2A with the particulars therein was wilfully and deliberately flouted by the candidate in furnishing the information called for from the candidate contesting the election, according to the counsel. There is nothing in the case to indicate other than that there was some inaccuracy in stating what exactly was the amount on deposit in the bank account maintained by the revision petitioner and his wife and that by itself would not render Form 2A fake to set aside his election, is the submission of the counsel. C.R.P.No.177 of 2009 :: 6 :: Reliance is placed on Lucy Joseph v. Elikutty James and another {2009(4) KHC 4431}, Gopalakrishnan v. Sarasi {2009 (2) KLT 882}, Shaji Mathew v. Thomas Chacko {2010 (2) KLT 148, Karunakaran v. Chandran Panikkar {2010 (2) KLT 379} Somasekharan Nair v. Divakaran Pillai {2010 (2) KLT 1022}, to contend that the Act does not contemplate of treating Form 2A fake, for the reason that the particulars stated therein are not correct or inaccurate. In the absence of specific pleading and proof there was material suppression of facts which would render Form 2A fake on the basis of inaccurate or incorrect particulars furnished in such Form, that alone, the election of the returned candidate is not liable to be set aside, is the submission of the counsel urging for reversing the concurrent decision rendered by the courts below annulling his election as a member of a panchayat. C.R.P.No.177 of 2009 :: 7 :: 4. Perusing the order passed by the learned Munsiff and also the judgment rendered in appeal by the learned District Judge, it is noticed that both the courts have failed to appreciate the question whether non-furnishing of correct particulars or even stating of inaccurate details of deposits in the bank accounts, that alone, would render Form 2A tendered with the nomination paper of the candidate 'fake' so as to render his nomination paper as void and liable to be rejected. The nomination paper not tendered with Form 2A duly filled up with the declaration thereon by the candidate is liable to be rejected. So the question to be considered, when an election of a returned candidate is impeached on the plea that Form 2A submitted by him with the nomination paper was 'fake', necessarily, has to be examined in the back drop whether the imputation made with respect to the non-furnishing of the particulars C.R.P.No.177 of 2009 :: 8 :: in Form 2A would have resulted in rejection of his nomination. Inaccurate statement which may sometimes turn out to be false later, whether it is sufficient to hold that Form 2A submitted with such inaccurate particulars fake, is the larger question to be considered when the election of a returned candidate is impeached setting forth such a ground placing emphasis on Section 52 of the Act, and Rule 6 of the Panchayat Raj (Conduct of Election) Rules 1995 {hereinafter referred to as 'Rules'}. 5. In the decisions referred to by the learned counsel for the revision petitioner, this court has held that the word 'fake' stated in Section 52(1A) of the Act should not be interpreted in such a manner that incorrect or inaccurate details furnished in Form 2A, that alone, with the nomination paper would render such form a 'fake'. Fake means a thing or person that C.R.P.No.177 of 2009 :: 9 :: has no genuineness, and it connotes to make or construct falsely. In other words, it must be something that is not what it purports to be. Mere inaccurate particulars which may turn out to be false, by themselves, cannot render an instrument 'fake' unless it is pleaded and proved that such particulars were wilfully and deliberately given falsely, and the declaration made as to the correctness of the statements given was mala fide. 6. Ext.X31, a copy of which was marked as Ext.A1, is the Form 2A submitted by the returned candidate with his nomination paper. In furnishing the details of his assets and also that of his family members, more particularly his wife, inaccurate or incorrect statements were made with respect to the sum in deposits in their accounts, operated in some banks, is in short the challenge that Form 2A submitted by him is fake, and it was C.R.P.No.177 of 2009 :: 10 :: so held by the two courts below to declare his election as void. Strangely enough, both the courts, it is seen, have taken a pre-conceived view that if there was 'mis-statement' or 'suppression' with respect to the assets of the petitioner and also his wife in the declaration, then such declaration has to be treated as fake and the election is liable to be declared as void under Section 102(1)(ca) of the Act. Evidently, such a view was formed without considering and analysing Section 52 (1A) and also the distinction for declaring the election of a returned candidate as void on the grounds covered under Section 102 (1)(a) to (ca) and those covered under Clause (d) thereunder. 7. Section 52(1A) of the Act reads thus: “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 C.R.P.No.177 of 2009 :: 11 :: 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 the Kerala Local Authorities (Prohibition of Defection) Act, 1999, in the form and manner as may be prescribed. No doubt, the aforesaid section indicates that a duty is cast upon the candidate to furnish the properties owned by him and the members of his family along with other details referred to in his declaration in Form 2A to be produced with his nomination paper. How far the failure or default or omission in supply of such details would render his election as void treating Form 2A submitted by him as fake, needs no further digression as it is covered by the decisions referred to above which clearly spell out that it is not every omission or inaccuracy or even falsity of statement that would render Form 2A fake, but only, deliberate and wilful suppression of material details which he was bound to disclose in the declaration. In the C.R.P.No.177 of 2009 :: 12 :: given facts of the case what could be seen is that the details of the amount in deposit in the account of the petitioner and also his wife in some banks given under Form 2A, the declaration submitted by him, was much less than what was actually in deposit in their accounts. As per Ext.X31, the deposit in the name of the petitioner was shown as Rs.3,70,000/- and that of his wife Rs.87,000/-. On the materials placed, it has come out in evidence that the petitioner was having two deposits of Rs.1,25,756.36 and Rs.7,50,330/- and in two different banks and his wife Rs.20,00593.35 and Rs.88,779/-. Whether the incorrect statement with respect to the deposit in the declaration Form 2A would render that form as fake is the question demanding consideration. What could be seen from the details of deposits furnished by the petitioner is that there was disparity with respect to the amounts in deposits in banks in his C.R.P.No.177 of 2009 :: 13 :: name and also that of his wife. There is much difference between incorrect details, false details and fake details to render the Form 2A fake. With respect to the details furnished over the deposits of the petitioner and his wife, it must be shown that there was material suppression and false details were wilfully provided by the petitioner to advance the prospects of his election. On that aspect, it could be seen that even in the election petition, Annexure A1 produced in the revision, there was no specific allegation, leave alone total paucity of evidence in the case. So much so, there was incorrect or inaccurate furnishing of details with respect to the deposits of the petitioner and his wife without anything more showing the culpability of the petitioner in withholding the actual details of such deposits in the declaration, it cannot be stated that the Form 2A submitted by him was fake, C.R.P.No.177 of 2009 :: 14 :: which would render his election as void as envisaged under Section 102(1)(ca) of the Act. 8. In the contextual facts presented in the case, it may be appropriate to take note of the distinction of the grounds covered under Section 102(1)(d) from those covered by Section 102 (1)(a), (b), (c) and (ca) of the Act. In respect of the grounds covered by Section 102(1) (a),(c) and (ca) of the Act, on substantiating such grounds or any of them, the election of the returned candidate would be rendered void. But, so far as the grounds covered under Section 102(1) (d) of the Act, proof of any of the grounds covered by that sub section is not sufficient, but it must be further established that it has materially affected the result of the election of the returned candidate, to declare his election void. To declare the election of a returned candidate void under Section 102(1)(ca), C.R.P.No.177 of 2009 :: 15 :: it must be established that Form 2A furnished by him was fake. It has already been pointed out that non-supply of correct particulars or even inaccurate or false details by themselves would not be sufficient to show that Form 2A is fake unless it is shown that it was wilfully and deliberately done and further he was bound to furnish true and correct particulars with respect to such details in the declaration with his nomination. No doubt, in the present case, the petitioner was expected to and truly bound to disclose correct details of his deposits and that of his wife in the accounts maintained in the banks in his declaration. But that alone is not sufficient to conclude, as done by both the courts below, to hold that the declaration furnished by him with such incorrect, or even assuming them to be false details, is sufficient to hold that it is fake. If we look into sub-clause (iv) of Section C.R.P.No.177 of 2009 :: 16 :: 102(1)(d), it could be seen a specific ground is provided for impeaching the election of a returned candidate if the result of the election had been materially affected by the non-compliance with the provisions of the Act or of any rules or orders made thereunder. Rule 6 of the Rules and Form 2A mandating the furnishing of a declaration covered thereunder by the candidate with his nomination paper, no doubt, demand furnishing of correct and accurate details with respect to the matters spelt out in te Form. So much so, if any incorrect statement is made, wilfully or not, in the Form, it could be stated that there was non-compliance with the provisions of the Rules which would render his election as void, if such violation had materially affected the result of the election, as covered under sub clause (iv) of Section 102(1)(d) of the Act. However, the infringement of Rule 6 of the Rules, more particularly sub-rule (2) and C.R.P.No.177 of 2009 :: 17 :: (2a) therein, with respect to the declaration furnishing the true particulars in Form 2A with the nomination paper, the inaccuracy or false details given thereunder, by themselves, is not sufficient to treat Form 2A furnished by him as fake. But no doubt, it may give rise to a ground for impeaching the election of such returned candidate if it had materially affected the result of the election. Infringing Section 52 (1A) of the Act by not furnishing the correct particulars in Form 2A and, thus, non-compliance of that Section and Rule 6 of the Rules, essentially give rise to a ground for declaring the election as void under Section 102(1)(d)(iv) of the Act. The challenge imputed against the election of the petitioner being built upon the case of non-supply of correct details of his deposit and also that of his wife in Form 2A being confined to the ground under Section 102 (1)(ca) of the Act, and no case C.R.P.No.177 of 2009 :: 18 :: having been canvassed that such non-furnishing of correct details had materially affected the result of the election, nothing more need be stated as to infringement of Rule 6 of the Rules by furnishing of the inaccurate and incorrect details in Form 2A. 9. The trial court has declared the election of the petitioner, the returned candidate as void for the sole reason that the deposits in his name and that of his wife exceeded the amount disclosed in Ext.X31 Form 2A, and “by not revealing the actual quantum of bank deposits” he had violated Section 52 (1A) of the Act, and therefore, it has to be held that he “submitted a fake declaration so far as the details regarding the bank deposits”. The crucial aspect whether inaccurate or false statement with respect to the deposits of the petitioner and his wife would render Form 2A fake was not considered but the C.R.P.No.177 of 2009 :: 19 :: incorrectness of the statement over deposits was treated as sufficient to hold that there was a fake declaration warranting his election to be set aside. That approach was per se wrong. As pointed out earlier, there must be a finding that Form 2A furnished by him is fake and such a finding cannot be formed solely on the basis of inaccuracy or incorrect statements, but looking into the other broader aspects as well whether by those statements material suppression have been made wilfully and deliberately to advance his election prospects, infringing the mandatory compliance called for under Section 52(1A) of the Act. The learned District Judge, has analysed the disputed question on the premise that 'if the declaration regarding the assets is found to be incorrect, then it is fake' and the election of the petitioner is liable to be declared under Section 102(1)(c) of the Act. For the sole reason C.R.P.No.177 of 2009 :: 20 :: that the details of the deposits of the petitioner and his wife stated in Ext.X31 were not correct, and much less than the actual deposits, it was held that there was violation of the mandate contained under Section 52(1A) of the Act, and, his election declared as void by the trial court was confirmed. As mere inaccuracy or even false statement with respect to Form 2A is not sufficient to treat it as fake, though such incorrect details may tantamount to and violate the mandate under Section 52(1A) of the Act and Rule 6 of the Rules, that by itself, cannot be a ground for setting aside the election of the returned candidate under Section 102(1(ca) of the Act. 10. So much so, on the proved facts and circumstances present in the case, where both courts below have mis-directed its enquiry in analysing the challenge against the election of C.R.P.No.177 of 2009 :: 21 :: the petitioner, with respect to the ground canvassed under Section 102(1)(ca) of the Act and the finding entered thereunder to set aside his election found to be unsustainable under law, it follows that the concurrent decision rendered setting aside the election of the petitioner has to be annulled, and it is ordered accordingly. The order of the trial court, setting aside the election of the revision petitioner - the returned candidate, as confirmed by the lower appellate court, is hereby set aside, ordering that the election petition impeaching his election shall stand dismissed. Since the respondent has not entered appearance to resist the revision, the petitioner is directed to suffer his costs. Revision is allowed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//