IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 CRP.No. 519 of 2009() -------------------------------- EA.15/2007 of DISTRICT COURT,TRIVANDRUM . OP(ELECTION) 30/05 OF THE II ADDL. MUNSIFF COURT, NEYYATTINKARA. .................... REVN. PETITIONER(S): APPELLANT ------------------------------ C.L.GEORGE, S/O. CHRISTUDAS, ROY VIHAR, KULANGARAKONAM, NARUVAMOODU P.O. BY ADV. MR.G.S.REGHUNATH RESPONDENT(S): RESPONDENTS -------------------------- 1. SAJIKUMAR S.A., AGED 30 YEARS, ROHINI NIVAS, MUKKUNADA, NARUVAMMOODU P.O. 2. VIJAYKUMAR, AYAKKOTTUMELE PUTHEN VEEDU, KULANGARAKONAM, NARUVAMOODU P.O. 3. SIVAN NAIR, MULAYARAKKAL VEEDU, KULANGARAKONAM, NARUVAMOODU P.O. 4. G.KRISHNAN NAIR, SUSTHA NAGAR, EDAMALA, KULANGARAKONAM, KOCHEL P.O. 5. MADHUSOODHANAN NAIR, CHATTUMUKKU PUTHEN VEEDU, KOORACHAVILA, NARUVAMOODU P.O. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/03/2010, THE COURT ON 07/04/2010 PASSED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No. 519 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of April, 2010. ORDER The petitioner, who was able to secure a mandate from Pallichal Grama Panchayat, found himself unseated by order of the court. He questions the correctness and legality of the order by which his election was declared invalid. 2. The question that is posed for consideration being narrow, the facts absolutely essential for the disposal of this revision petition alone are being referred to. The petitioner was elected to Pallichal Grama Panchayat from Kannancode Ward. The election was held on 24.9.2005 and he was declared elected on 27.9.2005. Petitioner had a huge majority. His election was called in question by the first respondent and others before the Munsiff's Court, Neyyattinkara. Though there are several grounds urged, the only ground that now CRP.519/2009. 2 survives for consideration is violation of Section 52 (IA) of the Kerala Panchayat Raj Act. Both the courts below found that there is violation of the above provision and the courts felt that there is sufficient ground to set aside the election of the petitioner. 3. Learned counsel appearing for the petitioner assailed the findings on several grounds. It was pointed out by the learned counsel that the court below were not justified in setting aside his election on the ground of violation of Section 52(IA) of the Act. There was only a bonafide omission and that is not a ground to set aside the election. It was also contended that even assuming that there was violation, that was not taken as a ground to reject the nomination of the petitioner and if that be so, that is not a ground for setting aside the election. It was also contended that the pleadings are vague and general in nature and on that ground also the court below should not have interfered with the election. CRP.519/2009. 3 4. In support of his contention, learned counsel for the petitioner relied on three decisions, (i) Joseph v. Kuriakose (2007(2) K.L.T. 242), (ii) Lucy Joseph v. Elikutty James (2009(2) KLT SN 92) and (iii) Gopalakrishnan v. Sarasi (2009(2) KLT 882). 5. In the first decision referred to above, it was held that the statutory form calling for particulars that are to be shown to be furnished. Even if the Section contains something more than to be provided, if the statutory form does not provide for that information, it need not be furnished. 6. In the second decision, it was held as follows: “S.52(IA) 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 cl.(ca) of sub-s.(1) of S.102, election could be set aside if the details furnished by the elected 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 CRP.519/2009. 4 election is liable to be set aside. Though S.35 provides the disqualifications, incorrect filling up of Form No.2A is not a reason for disqualification. S.55 of the Act provides for scrutiny of nominations. Sub-s. 2 of S.55 provide the grounds for rejection of the nomination paper. Under cl.(b) of S.55 if there has been a failure to comply with any of the provisions of S.52 and 53 the nomination paper could be rejected. In spite of introduction of S.52(IA) in the parent Act, S.52(IA) was not incorporated in sub-s.2(b) of S.55. Hence if provisions of S.52(IA) was complied by the candidate by submitting Form 2A, his nomination paper cannot be rejected. There is no pleading that details furnished in Form No.2A submitted by petitioner were fake and so the election is to be set aside under S.102(1)(ca) of the Act. On the other hand pleading was only that Form No.2A furnished by the petitioner under sub-s.(1A) of S.52 of the Act contains incorrect or false details. What was pleaded in para 4 was that petitioner has not filled up or gave all the information required to be given under R.52(1A) of Kerala Panchayat Raj (Conduct of Elections) Rules and the Returning Officer improperly accepted the CRP.519/2009. 5 nomination paper even though in Form 2A the details were not fully furnished.” 7. In the third decision referred to above, learned counsel relied on paragraph 8 of the decision. It reads as follows: “S. 102 of the Act provides the grounds for declaring an election void. Sub-s.(1) of S.102 provides that subject to the provisions of sub-s. (2), if the court is of the opinion that the election is vitiated either under cls.(a), (b),(c), (a) or (d) it shall declare election of the returned candidate void. Under cl.(d) election is to be declared void, if the result of the election in so far as the returned candidate has been materially affected (i) by improper acceptance of any nomination or (ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent or (iii) by improper reception, refusal or rejection of any vote or reception of any vote which is void or (iv) by any non compliance with the provisions of the Act or any rules or orders made thereunder. But, if an election is to be declared void under cl.(d), it is to be pleaded and proved that the result of the CRP.519/2009. 6 election of the returned candidate has been materially affected for any of the grounds under sub-cls.(i), (ii), (iii) or (iv). When the election is to be declared void under cls.(a), (b) © or (ca) it is not necessary to prove that the result of the election of the returned candidate has been materially affected on those grounds. Though first respondent did not mention the ground under S.102(1) (ca) in the election petition and instead in para 8 of the election petition prayed “hence as per S.102(1)(iv) election of first respondent is liable to be declared void on the sole ground that he has given false and incomplete statement in Form 2A”, learned District Judge treated the application as one filed for declaring the election void on the ground provided under S.102(1)(ca). True, quoting of a wrong section by itself is not fatal, if by reading the petition as a whole it is clear that the petition was filed on that ground. But reading of the election petition shows that it is the case of the respondent that the appellant did not furnish a proper Form 2A and instead filed Ext.X1(c) with false and incomplete statements. Non compliance with the provisions of the Act or of any rules or orders made under the Act is a CRP.519/2009. 7 ground to set aside the election under cl.(d)(iv) of S.102 (1) of the Act. In that sense, it could be said that the election petition is one filed under S.102(1)(d)(iv) of the Act. Whatever it be, as the petition was treated by the District Judge, to set aside the election under S.102(1)(ca) of the Act, and first respondent also asserted that election was challenged only on that ground and not under S.102(1)(d)(iv) by the At, question is whether the ground is established.” 8. Before going into the evaluation of the argument advanced by the learned counsel for the petitioner, it will be useful to refer to the relevant provision. Before doing so, one fact may be noticed. There is no vested or inherent right to challenge an election. It is a statutory right so that the right is circumscribed by the provisions of the respective Acts. Presently we are concerned with the Panchayat Raj Act. Chapter VII deals with the qualifications and disqualifications of the candidate, who propose to contest. Section 29 deals with qualifications CRP.519/2009. 8 and Sections 30 to 34 deals with disqualifications. Chapter VIII deals with notification of general elections etc. Chapter IX deals with conduct of elections. Section 52 deals with presentation of nomination paper and the requirements for a valid nomination. Section 55 provides for scrutiny of the nominations and Section 55(4) specifically states that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial nature. 9. Chapter X deals with disputes regarding election. Section 87 says that no election shall be called in question except by an election petition. Section 91 deals with content of the election petition. Section 102 deals with grounds for declaring the election to be void. The said section reads as follows: “102. Grounds for declaring election to be void.- (1) Subject to the provisions of sub- section (2) if the Court is of opinion- CRP.519/2009. 9 (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 this Act; or (b) that any corrupt practice has been committed 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 © that any nomination has been improperly rejected; or (ca) that the details furnished by the elected candidate under sub-section (IA) of Section 52 were fake; or (d) that the result of the election, in so far 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 this Act or of any rules or orders made CRP.519/2009. 10 thereunder, the Court shall declare that the election of the returned candidate to be void. (2) If in the opinion of the Court a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the 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; (b) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and © that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the Court may decide that the election of the returned candidate is not void. Explanation.- In this section the term “agent” has the same meaning as in section 120.” CRP.519/2009. 11 10. On a close scrutiny of Section 102, it can be seen that it provides for two sets of grounds for setting aside the election. The first set is Section 102 (1)(a) to (ca) and the other set is Section 102 (1)(d)(i) to (iv). There is a significant difference between two sets of grounds. In the former set of grounds, once it is shown that one of the grounds is established, the election is automatically has to be set aside. In the second set of grounds, apart from establishing any one of the grounds mentioned therein, the candidate has also to show that the result of the election has been materially affected. In other words, in the case of challenging an election on grounds provided under 102(1)(d) apart from establishing the ground, the candidate will have to show that by virtue of that ground, the results of the election have been materially affected. 11. One may now go back to Section 52(1A), which is the relevant provision, which we are concerned with in this case. It reads as follows: CRP.519/2009. 12 “(IA) 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 this 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 the Kerala Local Authorities (Prohibition of Defection) Act, 1999, in the form and manner as may be prescribed.” Rule 6 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995 reads as follows: “6. Nomination of candidates.- (1) A candidate shall be nominated by means of a nomination paper in Form No.2 and on an application in that behalf of an elector in the electoral roll of any constituency of concerned Panchayat, the Returning Officer shall provide him Form No.2 free of cost. CRP.519/2009. 13 (2) Every candidate shall make and subscribe an oath or affirmation before the Returning Officer or the person authorised by the State Election Commission in the Form specified in the First Schedule of the Act. (2a) Every candidate shall submit before the Returning Officer, the details in Form No.2A along with the nomination paper; (3) The Returning Officer shall, immediately on receipt of the nomination paper, number them serially in the order of their presentation and shall note the date and time of tis presentation in each nomination paper and shall issue a receipt attached to Form No.2.” 12. As far as the case on hand is concerned, the relevant allegations are contained in paragraphs 5, 6 and 7 of the petition. It is clearly stated that the petitioner has not revealed his liability to State Bank of Travancore, Balaramapuram, which is mandatory going by Section 52 (1A) of the Act. CRP.519/2009. 14 13. It is not possible to link the above ground with the rejection or acceptance of the nomination as is sought to be done by the learned counsel for the petitioner. One has to immediately note that improper acceptance of nomination falls under the second set of grounds under Section 102 while improper rejection of nomination falls under the first category. Therefore, the consequence of improper rejection and improper acceptance are entirely different. It is also significant to notice that the violation of Section 52(1A) falls within the first set of grounds, to be more specific under Section 102 (1)(ca). Therefore, once it is established that there has been a violation of Section 52(1A), it does not help the returned candidate thereafter to say that since his nomination was accepted, the violation is inconsequential. Violation of Section 52(1A) is fatal and that alone is sufficient to set aside the election of the candidate. 14. In the decision reported in Joseph's Case there is an observation that arrears due to BSNL and the act of not fully disclosing the educational qualifications are of CRP.519/2009. 15 no consequence. It is stated that since the form prescribed under the Act and the Rules does not make mention of arrears at all, it is not necessary to show the arrears incurred by the candidate. It is also stated that since there is no column for educational qualification, any defect in the statement regarding educational qualification is also not fatal. The decision reported in Lucy Joseph's Case deals with the necessity to have specific pleadings and also the definition of the term fake. 15. It would appear that fake does not include omission, false details incomplete details etc. According to learned counsel for the petitioner three propositions follow from the above decision, (i) if the nomination cannot be rejected, it is not a ground to set aside the election, (ii) if there are no pleadings and essential details given in the petition, then again, the relevant ground cannot be invoked and (iii) omission to mention any arrears or liability is not fatal. Only providing of fake details is a ground. CRP.519/2009. 16 16. A reading of Section 52(1A) says that the statutory form will have to be filed along with the nomination. That provision also provides the details to be given by the candidate in the form of an affidavit. It is extremely doubtful whether the Act contemplates a scrutiny of the authenticity or veracity of the particulars as required under Section 52(1A) of the Act given in the said form by the concerned election officer at the time of scrutiny of the nomination papers. 17. One may here note the purpose for which the above provision was introduced. The apex court had occasion to emphasis the necessity of giving full particulars of a candidate so that the electors may know whom they are going to choose. It was for the said purpose that the above provision was introduced. Section 52(1A) is in para materia with Section 33B of the Representation of People's Act, 1951. 18. If that be the intention and object behind the provision, one fails to understand as to how the candidate CRP.519/2009. 17 could escape by saying that he has only given incomplete particulars or has omitted to give some particulars, that does amount to fake particulars. That does not stand to reason at all. In Black's Law Dictionary the term 'fake' is defined as 'something that is not what it purports to be' and 'to make or construct falsely'. In Oxford Advanced Learner's Dictionary the word 'fake' is defined as 'to make something false appear to be genuine'. 19. One may recollect that at the time of scrutiny of the nomination all that the concerned officer has to do is to verify whether the prescribed form did contain the details as stipulated under Section 51(1A) is incorporated. It does not appear from the provisions of the Act that the officer concerned needs to verify the authenticity of the details given by the candidate. If the purpose and object of that provision is already referred to, it cannot stand to reason nor can be accepted when there is a reason for omission, false particulars etc will not come within the ambit of the Act and only fake particulars will be taken in. CRP.519/2009. 18 20. One may now refer to the decision reported in Arshad v. Nellancheri Mustaffa (2007(3) K.L.T. 785), wherein an identical question has arisen for consideration and the court held as follows: “Every candidate who files nomination paper is bound to give the details enumerated under S.52(1A). He shall not be deemed to be qualified to contest the election unless he furnish true and correct details. He shall not conceal material facts or give any false statement. Clause 3(a)(ii) deals with loans from Public Sector Undertaking. K.S.F.E. is a Public Sector Undertaking. Respondent was legally bound to give details of arears to K.S.E.F. under clause 3(a)(ii) in Form No.2A. 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.” 21. It is to be noticed that in the case on hand, the petitioner had not disclosed his liability to SBT, CRP.519/2009. 19 Balaramapuram. There is a specific averment to that effect in the petition. It is claimed that the debt was wiped off soon thereafter. But that is not a ground to overlook Section 52(1A). It could not be said that the petition suffers from want of pleadings. May be that the amount of arrears as such may not be much, but those are facts within the exclusive knowledge of the person who files the nomination and the person who challenges the election on that ground cannot be expected to furnish complete details. One cannot give a go by to the rules, pleadings and the evidence. 22. The failure on the part of the petitioner to disclose his liability to the SBT, Balaramapuram is a fact falls within the ambit of Section 52(1A) of the Act. If that be so, that is a ground to set aside the election under Section 102 (1)(ca). Both the courts below have found that the ground has been established. As already noticed, it is not necessary to show that that has materially affected the election so as to have the election set aside. At the risk of repetition, merely establishing that Section 52(1A)(ca) has been CRP.519/2009. 20 violated, the consequences follow and that the election has to be set aside. The courts below have followed the mandate of law. No grounds are made out to interfere with the orders of the courts below. This revision is without merits and it is accordingly dismissed. P. BHAVADASAN, JUDGE sb.