IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 16TH APRIL 2010 / 26TH CHAITHRA 1932 WP(C).No. 11292 of 2010(O) -------------------------- OP.49/2005 of DISTRICT COURT, PATHANAMTHITTA .................... PETITIONER(S): ------------------------- 1. MATHEW T.THOMAS, M.L.A., S/O.REV T.THOMAS, AGED 48 YEARS, THOOMPUMPATTU, KUTTAPUZHA.P.O, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. 2. RAJU ABRAHAM, M.L.A., AGED 49 YEARS, KANDANATTU HOUSE, ANGADI, RANNI, RANNI TALUK, PATHANAMTHITTA DISTRICT. 3. SANAL KUMAR, ADVOCATE, AGED 41 YEARS, PRESIDIENT, THE PATHANAMTHITTA DISTRICT CO-OPERATIVE BANK, ENAM (MANGATTU), PODIYADI.P.O, THIRUVALLA, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. BY SRI.T.KRISHNANUNNI, SENIOR ADVOCATE, BY ADV. SRI.K.SHAJ, SRI.L.RAJ MOHAN, SRI.SAJJU.S. RESPONDENT(S): -------------------------- 1. PROF. SAJI CHACKO, S/O.K.K.CHACKO, AGED 48 YEARS, KUZHIVELIL HOUSE, THURITHICADU MURI, KALLOOPPARA VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT. 2. ADV.M.PHILIP KOSHY, S/O.M.P.KOSHY, AGED 52 YEARS, MODIYIL USHUS, MALLAPPALLY WEST, PATHANAMTHITTA DISTRICT. 3. MADHU PARUMALA, S/O.GOPALA PANICKER, AGED 43 YEARS, PONVALIL HOUSE, PARUMALA.P.O, PATHANAMTHITTA DISTRICT. 4. A.K.SAJEEV, S/O.KUNJUKUNJU, AGED 35 YEARS, MAMANDATHU HOUSE, ANJILITHANAM.P.O, THIRUVALLA. BY ADV.SRI.JACOB P.ALEX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.11292/2010 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ELECTION PETITION (WITHOUT ANNEXURES) IN OP (ELECTION) 49/05 ON THE FILE OF THE DISTRICT COURT, PATHANAMTHITTA FILED BY THE ELECTION PETITIONER. P2: COPY OF COMMON JUDGMENT DTD. 17/08/2009 IN WPC NO.27752/2008 AND CRP NO.705/2008 OF THE HON'BLE HIGH COURT OF KERALA. P3: COPY OF I.A.NO.221/2010 IN EP.NO.49/2010 ON THE FILE OF THE DISTRICT COURT, PATHANAMTHITTA. P4: COPY OF NOTICE PURPORTED TO BE UNDER SECTION 101 OF THE KERALA PANCHAYAT RAJ ACT, 1984 IN OP(ELECTION) 49/05 OF THE DISTRICT COURT, PATHANAMTHITTA (DISTRICT ELECTION TRIBUNAL, PATHANAMTHITTA). P5: COPY OF I.A.NO.87/2008 IN EP.NO.49/2005 ON THE FILE OF THE DISTRICT COURT, PATHANAMTHITTA. RESPONDENT'S ANNEXURES: ANNEXURE 1: COPY OF THE ORDER DTD. 24/03/2010 IN I.A.NO.221/2010 IN ELECTION O.P.NO.49/2005. ANNEXURE 2: COPY OF THE ORDER DTD. 2ND FEBRUARY, 2010 IN WPC.27752 OF 2008 AND CRP. NO.705 OF 2005. ANNEXURE 3: COPY OF THE WITNESS SCHEDULE SUBMITTED BY THE CONTESTING RESPONDENT IN ELECTION OP. /TRUE COPY/ P.A.TO JUDGE Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 11292 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of April, 2010. JUDGMENT A very short question, i.e., as to when the notice contemplated on a combined reading of Sections 100 and the proviso to S.101(b) of the Kerala Panchayat Raj Act (hereinafter referred to as the Act) is to be issued, arises for consideration in this Writ Petition. 2. The brief facts absolutely necessary for the disposal of this Writ Petition are as follows : The petitioner was the elected candidate in the election held on 24.09.2005 to the Panchayat. The first respondent herein filed OP(Election) No.49/05, raising several allegations which, according to him, will invalidate the election of the petitioner. He also sought for a declaration that he is the duly elected candidate. WPC. 11292/10. 2 3. A preliminary objection was taken regarding the maintainability of the petition. Thereafter, the election petitioner sought amendment of the petition. The Court below held that the petition is maintainable and the amendment was allowed. It was carried to this Court in WP (C)No.27757/08 and CRP 702/08. The CRP was dismissed and the Writ Petition was disposed of making certain observations and fixing the time limit for the completion of trial and disposal. Ext.P2 is the copy of the said Judgment. The examination of witnesses commenced on 10.03.2010. PW1 was examined and Exts.A1 to A45 were marked. His cross examination continued till 26.03.2010 on which date, the election petitioner's evidence was closed. 4. While trial was in progress, on 24.03.2010, at 2.30 pm, the election petitioner filed IA No.20/10 in the election petition under S.101 of the Act seeking to have notice issued to the petitioner herein to appear before the Court and to show cause as to why he should not be named in the final order as guilty of indulging in corrupt practice, WPC. 11292/10. 3 which is Ext.P3. According to the petitioner, on the same day by about 2.45 pm, Ext.P3 petition was hastily allowed and the second respondent herein who is the first respondent in the election petition was not even heard. The court has now chosen to issue the notice stipulated under S.101 of the Act, which is produced as Ext.P4. 5. Relying on S.100 and the proviso to S.101(b) of the Act, the learned counsel for the petitioner contended that the Court below has erred in issuing Ext.P4 both in law and on facts. The learned counsel raised three points for consideration. They are - i). The act of issuing notice was a premature one. ii). The details of the allegation which the petitioner had to meet, had not been specified in the notice and iii). There is no application of mind by the court below before issuing Ext.P4 notice. WPC. 11292/10. 4 6. Elaborating on the above contentions, the learned counsel pointed out that notice under the proviso to S.101(b) can be issued only after the initial trial of the petition and after the court forms an opinion on the basis of evidence that a corrupt practice has been established and it is necessary to name some person who is not a party to the proceedings. That section cannot be invoked initially before arriving at a reasonable conclusion that corrupt practice has been committed. It was pointed out that the evidence collected during the trial must be evaluated and then a decision is to be taken to issue notice under Section 101(b) (i). The learned counsel placed reliance on the decision in Manohar Joshi v. Damodar Tatyaba ((1991) 3 SCC 342) and contended that the notice is defective for want of details. According to the learned counsel, the order directing notice as well as the notice issued are clearly unsustainable in law. WPC. 11292/10. 5 7. The learned counsel for the contesting respondent, on the other hand, pointed out that there is only one trial contemplated under S.100 and the proviso to S.101 (b). The contention of the petitioner that first, an order under S.100 of the Act will have to be passed and thereafter, recourse should be taken to the proviso to S.101(b), cannot be accepted. According to the learned counsel, the Act does not envisage a piecemeal trial of election petition. Once there is prima facie case to show that corrupt practice has been committed and some person who is not named in the petition is involved in the same, then the Court must issue notice to that person to show cause why he should not be named in the order. The proceedings against the said person continues as a part of the trial of the election petition and there cannot be two independent trials. The learned counsel also pointed out that it is not necessary to mention in the notice, the entire allegations in the petition, written statement, evidence etc. All that is necessary is to enclose copy of the petition which will show the allegations which WPC. 11292/10. 6 will have to be met by the person to whom notice is issued. According to the learned counsel, such a person has all the rights that a person has, in contesting the election petition. 8. In support of his contentions, the learned counsel relied on the decision reported in Dr. Ramesh Yeshwant Prabhoo v. Prabhakar K. Kunte ((1996) 1 SCC 130), Abhiram Singh v. C.D. Commachen ((1996) 3 SCC 665), Manohar Joshi v. Damodar Tatyaba ((1991) 3 SCC 342) and T.S. John v. Joseph M. Puthusery (ILR 2003(3) Kerala 144). 9. At the time of argument, the learned counsel appearing for the contesting respondent pointed out that the main allegation of corrupt practice on which the petition is hinged, is regarding the gross misuse of the postal ballot papers. According to the counsel, on 26.09.2005, i.e, two days after the election was held, the petitioners herein along with their agents and followers, gheraoed the District Collector and managed to get a large number of postal ballot papers. Those ballot papers were got filled up by them WPC. 11292/10. 7 and mixed with the other votes already polled. According to the learned counsel, if those votes are eschewed from consideration, he would be the winner. 10. Apart from the above contention, several other allegations are also seen made in the Petition, like double voting, impersonation, mal practice committed during bundling and counting of votes etc. 11. On hearing both sides, the first question that arises for consideration is whether the Court concerned has to wait till an initial order is passed under S.100, to take proceedings under the proviso to S.101(b). The next question that would arise for consideration is what are the ingredients of the notice to be issued by the court. Another question that arises for consideration is whether the Court can issue notice as contemplated under the proviso to S.101 (b) on a petition filed by the petitioner in the election petition. WPC. 11292/10. 8 12. Before going into the above aspects, the relevant statutory provisions must be noticed. Sections 100 and 101 of the Act read as follows : “100. Decision of the Court.- At the conclusion pf the trial of an election petition the court shall made an order- (a) dismissing the election petition; or (b) declaring the election of the returned candidate to be void; or © declaring the election of the returned candidate to be void and the petitioner or any other candidate to have been duly elected. 101. Other orders to be made by the Court.- At the time of making an order under Section 100, the court shall also make an order- (a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording- (i) a finding whether any corrupt practice has or has not been proved to have committed at the election, at the nature of that corrupt practice; and WPC. 11292/10. 9 (ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and (b) fixing the total amount of costs payable and specifying the persons by and to whom costs shall be paid: Provided that a person who is not a party to the petition shall not be named in the order under sub-clause (ii) of clause (a) unless- (i) he has been given notice to appear before the Court and to show cause why he should not be so named; and (ii) if he appears in pursuance of the notice, he has been given an opportunity of cross examining any witness who has already been examined by the Court and has given evidence against him, of calling evidence in his defence and of being heard.” S.102 deals with the grounds on which election can be declared to be void and S.120 deals with the corrupt practices. On a plain reading of Ss.100 and 101, it may initially appear as if that order has to be passed first under WPC. 11292/10. 10 S.100 and thereafter, recourse should be taken to the proviso to S.101(b), if occasion so arises. But, a close scrutiny will show that it is not so. The proceedings against a person who is sought to be named in the order should be a continuation of the trial of the election petition and provisions do not envisage a separate independent trial of the person to whom notice has been issued under the proviso to S.101(b)(i). 13. The respondent seems to be well supported in his contentions in the light of the decision reported in Chandrakanta Goyal v. Sohan Singh Jodh Singh Kohli (AIR 1996 SC 861), Dr. Ramesh Yeshwant Prabhoo v. Prabhakar's case, Makhan Lal Bangal v. Manas Bhunta (AIR 2001 SC 490) and T.S. John's case. In all these decisions, what is stated is that the Court need not and should not wait till an order is passed under S.100 to take recourse to the proceedings contemplated under the proviso to S.101(b). WPC. 11292/10. 11 14. It will be useful to refer to the decision reported in Manohar Joshi v. N.B. Patil (AIR 1996 SC 796) in this regard. In the said decision, it was observed as follows : “Admittedly, no notice was given to Bal Thakre or any other person against whom allegation was made of commission of corrupt practice in the election petition, even though the High Court has held those corrupt practices to be proved for the purpose of declaring the appellant's election to be void on the ground contained in Section 100(1)(b) of the R.P. Act. We would now indicate the effect of the combined reading of Sections 98 and 99 of the R.P.Act and the requirement of notice under Section 99 to all such persons before decision of the election petition by making an order under Section 98 of the R.P. Act. ............... ................. It follows that the High Court cannot make an order under Section 98 recording a finding of proof of corrupt practice against the returned candidate alone and on that basis declare the election of the returned candidate to be void and then proceed to comply with the requirement of Section 99 in the WPC. 11292/10. 12 manner stated therein with a view to decide at a later stage whether any other person also is guilty of that corrupt practice for the purpose of naming him then under Section 99 of the R.P. Act. It is equally clear that the High Court has no option in the matter to decide whether it will proceed under Section 99 against the other persons alleged to be guilty of that corrupt practice along with the returned candidate inasmuch as the requirement of Section 99 is mandatory since the finding recorded by the High Court requires it to name all persons proved at the trial to have been guilty of the corrupt practice. The expression 'the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice in sub clause (ii) of Clause (a) of sub section (1) of Section 99 clearly provides for such proof being required 'at the trial' which means the trial of an election petition mentioned in Section 98, at the conclusion of which alone the order contemplated under Section 98 can be made. There is no room for taking the view that the trial of the election petition for declaring the election of the returned candidate to be void under Section 98 can be concluded first and then the proceedings under WPC. 11292/10. 13 Section 99 commenced for the purpose of deciding whether any other person is also to be named as being guilty of the corrupt practice of which the returned candidate has earlier been held guilty leading to his election being declared void. The rationale is obvious. Whether the returned candidate is alleged to be guilty of corrupt practice in the commission of which any other person has participated with him or the candidate is to be held vicariously liable for a corrupt practice committed by any other person with his consent, a final verdict on that question can be rendered only at the end of the trial, at one time, after the enquiry contemplated under Section 99 against the other person, after notice to him, has also been concluded. Particularly, in a case where liability is fastened on the candidate vicariously for the act of another person, unless that act is found proved against the doer of that act, the question of recording a finding on that basis against the returned candidate cannot arise. Viewed differently, if the final verdict has already been rendered against the returned candidate in such a case, the opportunity contemplated by WPC. 11292/10. 14 Section 99 by any inquiry after notice to the other person is futile since the verdict has already been given. On the other hand, if the question is treated as open, a conflicting verdict after inquiry under Section 99 in favour of the noticee would lead to an absurdity which could not be attributed to the legislature.” 15. The other decisions also follows the same principle. 16. It is however, significant to notice that apart from saying that the trial of the election petition and the proceedings against the person to be named shall be conducted, these decisions do not specify the time at which notice is to be issued to the person contemplated under the proviso to S.101(b)(i). 17. The decisions are only to the effect that no two trials are contemplated under Ss.100 and 101. The corresponding provisions in the RP Act, 1951 are Ss.98 and 99. It can only be so. If in a case, if the allegations in the Petition are to the effect that the agent or some other WPC. 11292/10. 15 person at the behest of the candidate has committed any corrupt practice and evidence is available to that effect, then to hold the court has to pass an order under S.98 of R.P. Act (corresponding to Section 100 of the Panchayat Raj Act) and thereafter to proceed against the agent or the other person independently, who has not been named in the petition, would look absurd. Therefore, there can be only one trial. But the issue is when is the notice to be issued to the persons to be named in the order. 18. Before going into the above question, the pleadings with regard to the corrupt practice may be referred to. That is contained in paragraphs 4a and 4b of the Election Petition so far as the petitioners are concerned. As per the records and the impugned order, it is seen that P.Ws. 1 to 3 were examined and a number of documents were marked. A reading of the order would indicate that as on 24.3.2009 petitioner's evidence had been completed. But it is interesting to note that his evidence was closed only on 26.3.2010, a fact not disputed. WPC. 11292/10. 16 19. The petitioner before the court below had filed an application on which the present order (Ext.P4) is passed on 24.3.2010. The allegation is that even without giving an opportunity for filing objections and without hearing the contesting respondent, the impugned order was passed and notice was issued. Thus even before the examination of P.W.1 was completed, the court has issued notice to the petitioners herein. 20. It is also significant to notice that even though in Annexure I order it is seen mentioned as “I have heard the parties”, the contentions of the contesting respondent before the court below is not seen mentioned at all. Major portion of the order deals with various decisions cited before court. It is here one has to remember that the specific allegation in the petition before this court is that the said order was passed without giving an opportunity to the contesting respondent to file his objection and without hearing him. The complaint cannot be said to be baseless WPC. 11292/10. 17 when on a petition filed at about 2.30 p.m. if an order of the nature like R1(a) and Ext.P4 could have been passed by 2.45 p.m. 21. Coming to the question earlier posed, it may be useful to refer to the decision reported in Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh ((2001) 3 SCC 594). In the said case it was held as follows: “Section 99 comes into operation at the time of making an order under Section 98 on the completion of the trial of the election petition.” The decision relied on by the counsel for the respondent herein, ie., Manohar Joshi's case, the paragraphs already narrated would indicate that Section 99 of the RP Act, 1951 comes into play after the court has initially formed an opinion that corrupt practice had been committed and the person to whom notice to be issued is to be named in the order. Recollecting the statutory provision, namely Section 101, it is evident that after the completion of the evidence in the election petition, the court has to evaluate the materials WPC. 11292/10. 18 before it and if it comes to the conclusion that corrupt practice had been committed and a person who is not on the party array is sought to be named he has to be issued with notice. Forming of that opinion is not the end of the trial nor can a final order be passed on that basis. A careful reading of Section 101(b)(i)will show that recipient of the notice has to show why he should not be named in the order. That means the burden is cast on that person. This can be so only if there are materials against him in the trial conducted and the court forms the opinion that he is also guilty of indulging in corrupt practices and is to be named. The trial continues and the person to whom notice is issued can appear and establish his defence and that is continuation of the earlier trial. 22. In the case on hand, P.Ws.1 to 3 alone have been examined and the defence evidence had not yet commenced. It is also significant that notice was issued to petitioner even before the completion of the evidence of P.W.1. It is also interesting to note that the order was WPC. 11292/10. 19 passed on a petition filed by the petitioner in the election petition. It is difficult to understand the locus standi of the petitioner to file such a petition and the power of the court below to consider the same. The question as to whether notice should be issued to a person, who is not a party to the petition and who is to be named in the order is a matter to be determined by the court which tries the election petition and from the statutory provision it does not appear that the petitioner has any say in the matter. It is seen from the records that the petitioner before the court below had earlier filed a petition for the same relief and that has been dismissed as premature. It is not for the petitioner in the election petition to insist that notice should be issued to a person as contemplated under Section 101(b)(i) proviso. But it is for the court to decide whether the notice should go to the person made mention thereof. WPC. 11292/10. 20 23. The act of the court below in having issued notice on the basis of a petition filed by the petitioner before it and on partial evidence adduced in the case does not appear to be proper. It is also brought to the notice of this court that the court below allowed the ballot papers and election records to be examined even before the trial had started. It is difficult to accept the sanction given to peruse the ballot papers before establishing the circumstances which warranted such a course of action. Law in this regard is well settled. The principle of secrecy of ballot which is statutorily recognised could not be so easily infringed. It can yield to the principle of purity of election only under compelling circumstances. 24. Learned counsel appearing for the respondents before this court vehemently contended that it is not necessary for the election court to wait till the evidence in the case is completed, to form an opinion that corrupt practice has been committed by a person who has not been named in the petition so that notice can be issued WPC. 11292/10. 21 to him. According to the learned counsel, that opinion can be formed at any stage of the proceedings and once that