IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 El.Pet..No. 1 of 2009() ----------------------- PETITIONER: -------------------- UNNIKRISHNAN VELAYUDHAN NAIR, AGED 50 YEARS, SON OF VELAYUDHAN NAIR, KALLAMADATHIL, ALAPURAM, ELANJI P.O. 686 665, ERNAKULAM DISTRICT. BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SRI.THOMAS P.MAKIL SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.SOBHAN GEORGE RESPONDENT(S): --------------- JOSE K.MANI, AGED 44 YEARS, SON OF K.M.MANI, KARINGOZHACKAL, VELLAPPADU, PALA P.O., KOTTAYAM DISTRICT. ADV. SRI.S.SREEKUMAR SRI.P.C.IYPE SRI.P.MARTIN JOSE THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 04/04/2011, THE COURT ON 12/04/2011 DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- E.P.NO.1 OF 2009 ----------------------------------- Dated this the 12th day of April, 2011 J U D G M E N T The above election petition has been filed to declare the election of the respondent from the Kottayam Parliamentary Constituency to the House of People of Indian Parliament, in the general election held in May, 2009, as void and inoperative, and also to set aside his election. Petitioner had filed nomination to contest the election as an independent candidate, but, the Returning Officer improperly rejected that nomination, is his case for impeaching the election of the returned candidate - the respondent in the election petition. 2. Nomination paper filed by the petitioner, after preliminary scrutiny, being satisfied of the requirements for presenting such nomination, was accepted by the Returning Officer; but, later, at the time of scrutiny of the nomination E.P.NO.1/2009 2 papers, though he had pointed out that an inadvertent error with respect to the part number in the electoral roll of one of his proposers had crept in, his nomination paper was improperly rejected by the Returning Officer overlooking and discarding that such error in his nomination paper was not of substantial character, is the case of the petitioner for setting aside the election of the respondent. Petitioner filed nomination to contest the election as an independent candidate; and, as required by the statutory provisions, his nomination paper was proposed by ten electors from the Parliamentary Constituency. In respect of one of the proposers, Serial No.8 in the nomination paper, his part number in the electoral roll was mistakenly shown as part number '093' instead of part number '094'. At the time of scrutiny of the nomination papers, petitioner had brought this to the notice of the Returning Officer, but, ignoring his submissions, the Returning Officer illegally and improperly rejected his nomination paper. Subsequently, when the petitioner applied for getting copy of the order passed by the Returning Officer rejecting his nomination paper, he was issued Annexure H proceedings by the Returning Officer. In Annexure E.P.NO.1/2009 3 H proceedings, the reason stated for rejection of his nomination paper was that among his proposers, Serial No.8 was shown as 'Ramakrishnan Nair Velayudhan Nair' (094 Kaduthuruthy part No.93 Sl.No.687), but, on examining the electoral roll relating to that serial number, it was one 'Vijayakumaran Nair Sreedharan Nair', and as such, his nomination was not proposed by ten electors of the Constituency, and accordingly, it was ordered to be rejected. There is a patent mistake in the defect pointed out by the Returning Officer for rejection of his nomination paper as the proposer under Serial No.8 in the nomination paper of the petitioner was not 'Ramakrishnan Nair Velayudhan Nair', but 'Vijayakumaran Nair Sreedharan Nair', and as such, it is evident that his nomination paper had been rejected by the Returning Officer on erroneous finding/premise in a casual way ignoring his submissions made at the time of scrutiny of the nomination papers, and, thus, rendering rejection of the nomination paper as improper, according to the petitioner. Even otherwise, as the error with respect to the part number in the electoral roll of the concerned proposer, Serial No.8 in the nomination paper, was of no consequence at all and not of substantial character, the E.P.NO.1/2009 4 Returning Officer was obliged to overlook such error or atleast allowed it to be corrected, is the further case of the petitioner to impute that there was an improper rejection of his nomination paper vitiating the election and also its result, by which, the respondent had been declared elected from the Parliamentary Constituency. On the aforesaid grounds, petitioner has filed this petition for declaring that the election of the respondent is invalid and inoperative and also for setting it aside. 3. Petitioner has produced with the petition Annexures A to O to substantiate his case for the reliefs canvassed for. 4. The respondent resisted the petition filing objections disputing the case set up for impeaching his election. Refuting the case advanced by the petitioner that he had pointed out the mistake with respect to the particulars given of Serial No.8 proposer in his nomination paper, the respondent contended that at the time of scrutiny, it was the Returning Officer, who had pointed out the mistake in his nomination paper. At the time of scrutiny, on verifying the electoral roll of Serial No.8 proposer in E.P.NO.1/2009 5 the nomination paper with reference to the part number in the electoral roll number given in the nomination paper, the Returning Officer pointed out that as per the part number in the electoral roll, it was one 'Vijayakumaran Nair Sreedharan Nair' and not 'Ramakrishnan Nair Velayudhan Nair' as stated in the petitioner's nomination paper. At that time, the petitioner expressed his inability to rebut the objection pointed out by the Returning Officer. Though opportunity was provided to rebut the objection, the petitioner did not take any step or adduce materials, and it was under those circumstances, the Returning Officer rejected the nomination paper. According to the respondent, the petitioner had deliberately put a wrong number with respect to the part number of Serial No.8 proposer in his nomination paper with ulterior and sinister motive. Petitioner was not given an opportunity to correct the mistake or rebut the objection, as canvassed in his election petition, is false and unworthy of any merit, and, to the contrary, he did not seek or make any request to show that Serial No.8 proposer in his nomination paper was a voter falling under a different part number in the same Constituency, according to the respondent. E.P.NO.1/2009 6 In so far as Annexure H proceedings issued by the Returning Officer stating the reason for rejection of the nomination paper of the petitioner, the respondent has conceded that there is a mistake over the name of the proposer stated in the nomination paper of the petitioner. However, that is of no consequence, since, immediately on rejection of the petitioner's nomination paper, the reason for its rejection had been duly endorsed by the Returning officer in part No.V of his nomination paper as mandated under Section 36(6) of the Representation of the People Act, 1951; for short the 'Act'. Copy of the nomination paper containing the endorsement referred to above, which had been obtained by the respondent by recourse to the provisions under the Right to Information Act had also been produced with the objection to substantiate that what had been stated under Annexure H with respect to the name of Serial No.8 proposer was only a mistake while issuing such proceedings by the Returning Officer. The respondent had been elected with thumbing majority from the Constituency and the petitioner, who did not even seek permission to correct the mistake in his nomination paper when it was pointed out by the Returning E.P.NO.1/2009 7 Officer, and who also failed to rebut the objection raised by the Returning Officer, has filed the election petition only to harass the respondent and he has no bona fide in filing the election petition, is the case of the respondent. 5. On the pleadings of the parties, the following issues were settled for trial:- (1) Does the Election Petition disclose, and whether the petitioner has any cause of action to impeach the election of the respondent, the returned candidate ? (2) Whether the nomination paper of the petitioner had been improperly rejected by the Returning Officer as alleged in the petition ? (3) Is the election of the respondent liable to be declared void on the ground of improper rejection of the nomination paper of the petitioner in the election ? (4) Reliefs and costs ? The issue raised as to whether the petitioner has a cause of action to challenge the election of the returned candidate - respondent was considered preliminarily as it has a telling effect E.P.NO.1/2009 8 whether further enquiry over the election petition by recording the evidence of both parties is necessary for its disposal. 6. I heard the counsel on both sides. The learned counsel for the petitioner adverting to the statements made in the election petition with reference to the annexures produced as well, more particularly, Annexure H proceedings issued by the Returning Officer as to why his nomination paper was rejected, and pointing out the apparent and incontrovertible mistake made therein as to the name and particulars of the proposer numbered as Serial No.8 in his nomination paper, contended that whatever be the objections raised by the respondent/the returned candidate to resist his election petition Anenxure H order of the Returning Officer, prima facie indicate his non-application of mind giving rise to a legitimate inference that there was an improper rejection of the nomination paper of the petitioner and, thus, denying him an opportunity to contest the election, and, when that be so, it cannot be stated that he has no cause of action for filing of the petition and to have a disposal of the petition on its merits after recording the evidence of the parties. E.P.NO.1/2009 9 Even the respondent in his objections has not contended that the petition is not maintainable for the reason that no cause of action had been made out on the allegations raised is also highlighted by the counsel to contend that in the given facts of the case and on the materials produced by the petitioner, the question whether he has made out a cause of action for presenting the election petition is not of much moment to proceed further with the trial of the case. Placing reliance on the proviso to clause (4) of Section 33 of the Act and contending that the mistake with regard to the part number of the proposer named in Serial No.8 in his nomination paper was an inadvertent error, which should have been overlooked by the Returning Officer, the learned counsel further submitted that if at all such error warranted correction, the Returning Officer should have offered the petitioner an opportunity at the time of scrutiny of the nomination papers to correct his nomination paper by showing the correct part number of the proposer named under Serial No.8. At any rate, the mistake or error with respect to the part number of the proposer shown as Serial No.8 in the nomination paper was not material and the Returning Officer in rejecting the E.P.NO.1/2009 10 nomination paper, on such ground, has flagrantly overlooked the prescription under sub rule (4) of Section 36 of the Act, which mandated that he shall not reject any nomination paper on the ground of any defect which is not of a substantial character, is the submission of the counsel. The question emerging for consideration in the election petition being centered on the decision taken by the Returning Officer to reject the nomination paper of the petitioner for the reason adverted as above and where Annexure H order issued by him relating to the same, prima facie, indicate that the rejection was improper, as even the name of the proposer in Serial No.8 differs in such proceedings, the learned counsel for the petitioner urged that the petitioner has made out a case to show that he has got a cause of action for presenting the election petition and to have its disposal on merits. 7. Per contra, the learned counsel for the respondent contended that the very entertainability of the petition itself has been impeached contending that it was the Returning Officer who had pointed out the mistake in the particulars given over E.P.NO.1/2009 11 one of the proposers in the nomination paper of the petitioner and it was not shown by the petitioner at the time of scrutiny by him as alleged, and, further, the petitioner, at that stage, did not rebut the objection nor seek any opportunity to correct the mistake with respect to the defect pointed out when such challenge was raised, is more than sufficient to spell out that the petitioner has no cause of action for presenting the election petition and there was no further need to state so in explicit terms. Where the defect in the particulars given of one of the proposers of the petitioner was noticed at the time of scrutiny of the nomination papers, he did not rebut the objection or seek an opportunity to correct the mistake, if any, is borne out even by the allegations set out in the election petition, according to the learned counsel for the respondent. It cannot be stated that the defect noticed with respect to Serial No.8 proposer in the nomination paper was not material when the Act prescribes that the nomination paper of an independent candidate should be supported by ten electors of the Constituency, which in turn demand furnishing of their correct particulars fixing their identity as voters in the Constituency. Where part number in the E.P.NO.1/2009 12 electoral roll with respect to Serial No.8 proposer in the nomination paper was found not tallying with the relevant electoral roll, the petitioner did not rebut that objection nor even made any request for correction, leave alone furnishing explanation that it was a mistake only and the name of Serial No.8 proposer is included in a different part number in the electoral roll of the Constituency. After his nomination paper was rejected by the Returning Officer the petitioner made a request for issue of a copy of his nomination paper with the reason for its rejection. Annexure J produced by the petitioner with the petition is stated to be a copy of the request so made. According to the counsel, even in that petition, he has no case that any attempt was made to rebut the objection detected at the time of scrutiny of the nomination papers nor of furnishing any explanation why the defect was not material. Later, the petitioner had filed Annexure L petition seeking a review of the order rejecting his nomination paper. In that petition also, the case now advanced in the election petition that he had pointed out the mistake in his nomination paper at the time of scrutiny of the nomination papers is not only conspicuously absent, but, E.P.NO.1/2009 13 even he has no case that any attempt was made to rebut the objection or of making any request to correct the mistake establishing the identity of Serial No.8 proposer as a voter in the Constituency. Where the identity of the ten proposers of the independent candidate as voters in the Constituency, in which, the nomination paper of such candidate was filed, is essential to satisfy the mandatory prescription covered under Section 33 of the Act, the Returning Officer noticing the fatal defect disclosing that the particulars of Serial No.8 proposer in the nomination paper of the petitioner did not tally with the concerned electoral roll, and when such objection being pointed out remained unrebutted, was fully justified in rejecting the nomination paper. The defect detected being of a substantial character, the rejection of such nomination paper was just and proper and it is unassailable, contends the counsel. The petitioner who has no case of making any request before the Returning Officer to correct the mistake, even assuming that it is one correctable, at the time of scrutiny of the nomination papers with the permission of the Returning Officer, does not have any cause of action to impeach the election of the returned candidate, who E.P.NO.1/2009 14 has won the election with thumbing majority is the further submission of the counsel urging for dismissal of the election petition in limine. 8. Indisputably, there was a mistake with respect to the part number in the electoral roll of one of the proposers of the petitioner – Serial No.8 in the nomination paper – and that has led to the rejection of his nomination paper by the Returning Officer at the time of scrutiny of the nomination papers. The mistake so made in his nomination paper was not of substantial character, and at any rate, he should have been given an opportunity to correct the mistake, and as such, the rejection of his nomination paper was improper and it has vitiated the result of the election declaring the respondent as the returned candidate, is the case of the petitioner for setting aside the election of the respondent. The respondent, on the other hand, contends that the objection as to the defect noted in the nomination paper of the petitioner by the Returning Officer was not rebutted nor did the petitioner seek any opportunity to correct the defect asserting that the name of Serial No.8 E.P.NO.1/2009 15 proposer in his nomination paper appear in a different part number in the Constituency, and, the rejection of the nomination paper of the petitioner, in such circumstances, by the Returning Officer, was just and proper, and as such, the petitioner has no cause of action for filing the election petition. 9. Petitioner had filed his nomination paper to contest the election in the Kottayam Parliamentary Constituency as an independent candidate. Since he was not a candidate set up by a recognized political party, but an independent candidate, the mandatory requirements under the proviso to Section 33 of the Act demanded that his nomination paper should be subscribed “by ten proposers being electors of the Constituency”. Serial No.8 proposer in his nomination paper was one 'Vijayakumaran Nair Sreedharan Nair', whose particulars as to the 'Constituency, part number and the electoral roll number' were stated as 'Kaduthuruthy, 093, and 117' respectively. Admittedly, the part number stated with respect to that proposer as “093” was incorrect and it was in fact “094”. No doubt, the mistake as noticed in the nomination paper E.P.NO.1/2009 16 of the petitioner with respect to Serial No.8 proposer was a defect as the identity of the proposer as an elector to the Constituency has to be examined with reference to the part number and electoral roll, to satisfy the requirements mandated by the proviso to Section 33 of the Act, referred to above. The learned counsel for the petitioner has relied on the proviso to sub section (4) of Section 33 and also sub section (4) of Section 36 of the Act to contend that the denial of an opportunity to him when such a defect was noticed in his nomination paper was improper especially where such defect noticed in his nomination paper could not be treated as one of substantial character. Section 33 of the Act prescribes the modalities for presentation of nomination paper and the requirements for a valid nomination. Sub section (4) with the proviso of the above Section and also sub section (4) of Section 36 of the Act are relevant for considering the issue involved and they are reproduced hereunder. Sub section (4) of Section 33 of the Act reads thus: (4) On the presentation of a nomination paper, the returning officer shall satisfy E.P.NO.1/2009 17 himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls: [Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.] Sub section (4) of Section 36 of the Act is as hereunder: (4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. E.P.NO.1/2009 18 A close reading of the proviso to sub section (4) of Section 33 of the Act clearly demonstrate what is not to be treated as material defect is “misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper” and with respect to such misnomer or inaccuracies or clerical, technical or printing error, the Returning Officer is vested with authority “to grant permission to correct them and where he deems fit, direct that such an error in the electoral roll or in the nomination paper shall be overlooked.” What is to be noticed is misnomer or inaccurate description or clerical or technical error or printing error with respect to the name of the candidate or his proposer or of the place mentioned in the electoral roll or in the nomination paper, that alone is referred to in the proviso as to how such inaccuracies have to be dealt with, by the Returning Officer vesting him with the authority to grant permission to correct them or even to overlook such errors. The aforesaid proviso as such does not spell out that a correction or mistake in stating the part number or electoral roll number or of E.P.NO.1/2009 19 the Constituency of a candidate or his proposer in his nomination paper can be treated as an inaccuracy, which could be corrected or even be overlooked by the Returning Officer. Still, obviously, as there is no interdiction in permitting correction of a mistake with respect to the electoral roll number, part number etc. of a candidate or proposer by the Returning Officer at the time of presentation of the nomination papers, it cannot be stated that such correction is impermissible even at the time of scrutiny. But the larger question in the given facts of the case is whether any request was made by the petitioner to correct the defect or error or mistake in his nomination paper with respect to the part number in the electoral roll of Serial No.8 proposer in the nomination paper as that has decisive significance in considering whether the petitioner has a cause of action to impeach the election of the returned candidate - the respondent. There is no whisper in the election petition that the petitioner made any request to the Returning Officer to permit him to correct the mistake though he had set up a case that it was he who pointed out the mistake at the time of scrutiny of the nomination papers. Leaving aside the question whether it was pointed out by the E.P.NO.1/2009 20 petitioner or detected by the Returning Officer suo motu or on objection raised from any other person present at the time of scrutiny of the nomination papers, did the petitioner make a request to the Returning Officer for correcting the mistake, is the pivotal question. Annexure J, the application moved by him after rejection of his nomination paper does not indicate that the defect was pointed out by him as alleged in the petition nor of any request made to the