IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 El.Pet..No. 4 of 2009() -------------------------- PETITIONER --------------- R. UNNIKRISHNA PILLAI, EX-MLA, SON OF RAMAN PILLAI, AGED 65 YEARS, ANAKOTTU VAZHUVELIL HOUSE, WARD NO.11, ADOOR MUNICIPALITY, ADOOR TALUK, PATHANAMTHITTA DISTRICT. BY ADVS. SRI. K.SHAJ SRI.L.RAJMOHAN RESPONDENT(S): -------------------- ANTO ANTONY PUNNATHANIYIL (MEMBER OF PARLIAMENT, HOUSE OF THE PEOPLE [LOK SABHA], 17 HP CONSTITUENCY, PATHANAMTHITTA),SON OF ANTONY, AGED 52 YEARS, RESIDENT OF 12/710A (11/287), SKYLINE PALM SPRING VILLA, KALATHIPADY,VADAVATHOOR P.O., KOTTAYAM. R1 BY ADVS. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.BENNY ANTONY PAREL SRI.K.ANAND SRI.SAIBY JOSE KIDANGOOR SRI.JOSWIN THAMBI KUNNATH SRI SREELAL WARRIER THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 28/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs M.SASIDHARAN NAMBIAR, J ........................................... E.P.NO. 4 OF 2009 ............................................ DATED THIS THE 28th DAY OF MARCH, 2011 ORDER The respondent was declared elected to 17 Pathanamthitta Constituency of House of the People, on 16.5.2009, defeating his nearest rival Advocate Ananthagopan by a majority of 1,11,206 votes. Petitioner who was an Ex-MLA of Adoor Assembly Constituency and an elector of the Parlimentary Constituency, filed the election petition, to declare the election of respondent as void “ for violating order No.3/ER/2993/JS2 dated 27.3.2003 and order dated 28.6.2002 of Election Commission of India in pursuance to the directions of the Supreme Court and powers conferred by Representation of People Act 1951 and for violation of Honourable Supreme Court orders and also violation of the voters right of expression guaranteed under Article 19 (1)(a) of the Constitution of India and the provisions of the Indian Constitution, Election Commission and to set aside the election of the respondent”. 2. The case of the petitioner is that pursuant to the EP 4/2009 2 directions of the Honourable Supreme Court in Union of India V. Association for Democratic Reforms and another (2002 (5) SCC 294), whereunder the election commission was directed to call for information on affidavit by issuing necessary order in exercise of the power under Article 324 of Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein information on whether the candidate is convicted, acquitted, discharged of any criminal offence in the past, if any and whether he is punished with imprisonment or fine, whether prior to six months of filing of nomination the candidate is accused in any pending case of any offence punishable with imprisonment for two years or more, his assets, movable and immovable, bank balance etc and that of his/her spouse and dependants, liabilities if any particularly whether there are any overdues of any public financial institution, or Government dues and educational qualification of such candidate, order dated 28.6.2002 was issued by the Election Commission and thereafter Sections 33A and 33B were inserted in the Representation of People Act, 1951 and though under Section EP 4/2009 3 33B, the directions in the order dated 28.6.2002 were watered down by providing that details to be furnished are limited to only with respect to criminal cases, and by Section 33B it was clarified that no candidate shall be liable to disclose or furnish any other information provided under the earlier order, Section 33B was challenged before the Honourable Supreme Court and by the decision in People's Union For Civil Liberties V. Union of India (2003(4) SCC 399), Honourable Supreme Court struck off Section 33(B) of Representation of People Act and declared that the details which were directed to be furnished in the Association for Democratic Reforms case earlier shall prevail, and the Election Commission was directed to issue fresh orders. By order dated 27.3.2003, Election Commission directed all candidates to furnish by way of an affidavit, to be filed along with nomination paper, certain details including assets and liabilities of the candidate, his/her spouse and that of the dependants and therefore the respondent is obliged to disclose all the assets belonging to him and his wife. It is contended that though Annexure C affidavit was filed by the respondent along with his nomination paper, it does not disclose all the immovable EP 4/2009 4 properties. It is contended that the respondent, trespassed upon the river puramboke land in Survey No.513/2 of Moonnilavu Village and subsequently the respondent and his wife started paying the land tax for the said property and got their name included in the Thandaper Register and the said property was omitted to be shown in Annexure C affidavit and therefore Annexure C is not an affidavit as provided under Section 33A and the order of the Election Commission dated 27.3.2003. It is contended that the said details are suppressed as its disclosure would have shown that respondent is a government land-grabber and as encroachment of government land was a serious issue discussed in the election, it would have resulted in loss of votes and the non disclosure thereby materially affected his election. Therefore the election is liable to be set aside as provided under Section 100(1)(d)(iv) of the Representation of People Act. 3. The respondent filed a preliminary objection contending that the Election Petition is liable to be rejected at the threshold as it does not disclose any valid ground to set aside the election. Relying on the decision of this court in Mani C.Kappan V. K.M.Mani (2007(1) KLT 228) it was contended that for violation EP 4/2009 5 of the order dated 27.3.2003, the election cannot be set aside. In the preliminary objection, it was also contended that there was no non disclosure of the assets as alleged and the property allegedly not disclosed was transferred by the respondent and his wife long prior to notification of the election. 4. Learned counsel appearing for the petitioner and learned Senior counsel appearing for respondent were heard. The argument of the learned counsel is that learned Single Judge in Mani C.Kappan's case did not consider the question whether order passed by the Election Commission dated 27.3.2003 is an order passed under the Representation of People Act and therefore based on that decision, election petition cannot be dismissed. The argument is that when the Honourable Supreme Court quashed Section 33B of Representation of People Act, in Peoples Union for Civil Liberties case (supra) declaring that the directions issued in the Association for Democratic Reforms case (supra) will stand and a candidate has to furnish all the particulars as directed in the earlier decision and the election commission issued the order dated 27.3.2003, pursuant to the said directions, it is an order passed under the provisions of The EP 4/2009 6 Representation of People Act and its violation would attract Section 100(1)(d)(iv) of the Representation of People Act. 5. Learned counsel appearing for the respondent argued that in view of the decision in Mani C.Kappan's case (supra), the question has been settled and as the election is sought to be set aside, on a ground not provided in the Representation of People Act, petition is not maintainable. 6. The Election petition did not specifically show that the respondent or his wife was owing and possessing 8.6 ares of land in R.S.No.513/2 of Moonnilavu Village, on the date when the respondent submitted the nomination paper. Though learned counsel appearing for the petitioner submitted that an overall reading of the election petition will disclose it, whatever it be, it is the specific case of respondent that the property which was allegedly not disclosed by the respondent was transferred much earlier to the submission of the nomination paper. In view of the said contention raised, respondent was directed to file an affidavit and to produce the copy of the registered sale deed. Pursuant to the directions, respondent produced copy of the sale deed executed on 27.11.2008 and the affidavit. The registered EP 4/2009 7 document No.2733/08 of S.R.O, Erattupetta establishes that the property, which was not shown in Annexure C affidavit was transferred in November 2008 itself. On the request of election petitioner, an opportunity was granted to consult the election petitioner and verify whether the property was assigned as shown in the document. Learned counsel appearing for the petitioner on instructions submitted that when the election petition was filed, election petitioner was unaware of the transfer and copy of the registered document produced by respondent establishes that the property was not available with the election petitioner on the date of submission of his nomination paper. It is therefore submitted that there was no violation of any order passed by the election commission as originally contended in the election petition. 7. Section 86(1) of the Representation of People Act provides for dismissal of an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. Under Section 81, election petition could be filed to set aside the election only on one or more grounds specified in sub- section 1 of Section 100. The only ground shown in the election EP 4/2009 8 petition is the one under Section 100(1)(d)(iv). It reads. “ Grounds for declaring election to be void - (1) subject to the provisions of sub-section (2) if (the High Court) is of opinion- (a)xxxx (b)xxxxx (c)xxxxxx (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected - (i)xxxxxx (ii)xxxxxxx (iii)xxxxxxx (iv) by any non-compliance with the provisions of the Constitution or (the High Court) shall declare the election of the returned candidate to be void”. 8. The case is that one item of property owned by the respondent and his wife was not disclosed in Annexure C affidavit 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 EP 4/2009 9 learned counsel appearing for the petitioner admitted that respondents had transferred the said property much earlier to the submission of the nomination paper. 9. In such circumstances, when the election is sought to be set aside only on the ground that respondent did not disclose in the affidavit, the details of the property, which was already transferred by respondent and his wife much earlier to the issuance of notification of the election, the election cannot be set aside on that ground. If so, proceeding with the election petition will only result in unnecessary waste of judicial time as the election cannot be set aside on the ground alleged. The election petition is therefore dismissed. Registry to communicate the order to the Election Commission and the Speaker of the Lok Sabha as provided under Section 103 of the Representation of People Act. M.SASIDHARAN NAMBIAR, JUDGE lgk