IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 CRP.No. 647 of 2008() ------------------------------ CMA (ELECTION) NO.37/2006 of DISTRICT COURT, MANJERI .................... REVN. PETITIONER/1ST RESPONDENT/1ST RESPONDENT: ----------------------------------------------------------------------------------- RAMACHANDRAN, S/O.ACHUTHA VARRIER, PARAYIL KIZHAKKEVALAPPIL HOUSE, MUDOOR AMSOM, KUVAPRA DESOM, PONNANI TALUK, MLAPPURAM DISTRICT. BY ADV. MR.M.SASINDRAN MR.TOJAN J. VATHIKULAM RESPONDENTS/APPELLANT, RESPONDENTS 2 AND 3/ PETITIONER, RESPONDENTS 2 AND 3: ----------------------------------------------------------------------------- 1. PANNIKOT RAVIKUAMAR, S/O.NARAYANA MENON MUDOOR AMSOM, POTTUR DESOM PONNANI TALUK. 2. ABDUL LATHEEF, S/O.SAIDALAVI, KALATHIL VALAPPIL HOUSE MUDOOR AMSOM, PUTTUR DESOM., PONNANI TALUK. 3. RAYIPARAMBATH GOPINATHAN, S/O.ACHUTHAN NAIR, MUDOOR AMSOM, NELLEKKAD DESOM, PONNANI TALUK. R1 BY ADV. MR.SANTHEEP ANKARATH, MR.V.C.MADHAVANKUTTY. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.647 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 28th July, 2009 ORDER The revision is directed against the judgment dated 23.7.2008 of the District Judge, Manjeri allowing an election petition filed by the first respondent impeaching the election of the first respondent, the returned candidate as a member to the Vattamkulam Grama Panchayat, in reversal of the order passed by the learned Munsiff, Ponani dismissing that election petition. Parties are hereinafter referred to as petitioner and respondent, though ranked differently in the election petition, for the sake of convenience. 2. Short facts necessary for disposal of the revision can be summed up thus: The first respondent filed the nomination for contesting election from Ward No.IV of Vattamkulam Grama Panchayat in the general election held in 2005. The revision petitioner and respondents 2 and 3 also filed nominations to contest election from the above ward. The nominations filed by the first respondent and also third respondent were rejected at the time of scrutiny as both of them had been proposed as candidates to the election by the same voter in that ward. The nominations of the petitioner and the 2nd respondent were found valid and accepted. The second CRP No.647/08 - 2 - respondent withdrew his nomination on its acceptance and thereby the petitioner was declared elected uncontested. The first respondent challenged the election of the petitioner contending there was improper rejection of his nomination. The revision petitioner (the first respondent in the election petition) and also the second respondent appeared, but the revision petitioner alone contested the petition. Challenges made to his election were resisted by the revision petitioner, the returned candidate, setting for the various contentions including the maintainability of the petition as well. No oral evidence was adduced by any of the parties. Petitioner got marked Exts.A1 to A8, and Exts.X1(a) to X1(d) were also exhibited as third party exhibits after summoning and producing them by orders of the court. The learned Munsiff, after appreciation of the materials produced with reference to the facts involved and hearing the counsel on both sides, concluded that the rejection of the nomination of the first respondent by the returning officer was in accordance with law and the challenge raised in the election petition was unworthy of merit, with the result the election petition was dismissed. Aggrieved by that decision, the first respondent preferred an appeal before the District Court, Manjeri. The learned District Judge, after appreciating the materials CRP No.647/08 - 3 - and hearing the counsel on both sides, arrived at the conclusion that the nomination of the first respondent was improperly rejected by the returning officer and as such the election of the revision petitioner, the returned candidate, is liable to be set aside, and accordingly it was set aside. The revision has been filed by the returned candidate challenging the judgment rendered by the learned District Judge setting aside his election, impeaching it unsustainable under law as suffering from jurisdictional infirmity. 3. I heard the learned counsel on both sides. Learned counsel for the revision petitioner assailed the judgment of the lower appellate court setting aside the decision of the trial court as illegal, patently erroneous and unsustainable in law. Inviting my attention to the election rules applicable to the election of members to the Panchayat, learned counsel contended that the form prescribed in which the declaration of the proposer that he had not proposed any other candidate has crucial bearing on the validity of the nomination and when it is established that the proposer of the first respondent had proposed his name as well as another candidate by making false declaration, the nomination forms tendered by both such candidates were liable to be rejected. The decision of the returning officer CRP No.647/08 - 4 - rejecting the nomination of the first respondent which was found proper, correct and valid by the trial court, it is submitted, was reversed by the learned District Judge in appeal on mere surmises and conjunctures without correctly appreciating the provisions of the Panchayat Act and the electoral rules thereunder. The judgment rendered by the learned District Judge setting aside the election of the revision petitioner holding that there was an improper rejection of the nomination of the first respondent, it is submitted by the learned counsel, is patently erroneous and unsustainable in law. On the other hand, the learned counsel for the first respondent contended that there is no jurisdictional infirmity leave alone any infirmity whatsoever in the judgment rendered by the lower appellate court warranting interference in exercise of revisional jurisdiction of this court. Pointing out that there is no provision in the Panchayat Raj Act or the electoral rules to treat a nomination paper of a candidate invalid for the reason that the declaration given by the proposer that he had not proposed any other candidate is incorrect. It is submitted by the learned counsel, even on the proved facts of the case where the nomination paper of the first respondent was tendered at an earlier point of time than that of the third respondent who was also CRP No.647/08 - 5 - proposed by the same voter the rejection of that nomination paper on account of the declaration made later in point of time by the proposer in the nomination paper of the third respondent was patently illegal. Since the nomination before the first respondent was improperly rejected as established by the facts and circumstances of the case, the election of the revision petitioner was vitiated and liable to be set aside. The learned District Judge, after considering the issue meticulously, in accordance with the legal principles applicable, being satisfied that there was an improper reception of the nomination paper of the first respondent set aside the election of the revision petitioner under the impugned judgment, which according to the learned counsel is unassailable. It is contended by the learned counsel that the revision is devoid of any merit and liable to be dismissed. 4. The question emerging for consideration is whether there was an improper rejection of the nomination of the first respondent by the returning officer which admittedly was made for the reason that his proposer had proposed another candidate also to the election, the third respondent, and in the from by which the nomination was made in respect of both the candidates, he made a CRP No.647/08 - 6 - false declaration that he had not proposed any other candidate in the election. To appreciate that question, the relevant provisions of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as 'the Act') and also the Kerala Panchayat Raj (Conduct of Elections) Rules, 1995 (hereinafter referred to as 'the Rules') have to be examined. 5. Chapter IX with the heading 'Conduct of Elections' prescribed the modalities for the elections to the various levels of Panchayats. Section 55 of the Act deals with the scrutiny of nominations and sub- section (2) with respect to rejection of any nomination on the grounds enumerated therein. Sub-section (2) of Section 55 which alone has relevance for the purpose of resolving the question involved is stated hereunder: “(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds, namely:- (a) that on the date fixed for the scrutiny of nominations, the candidate is either not qualified or is CRP No.647/08 - 7 - disqualified for being chosen to fill the seat under any of the provisions of this Act; (b) that there has been failure to comply with any of the provisions of Section 52 or Section 53; or (c) if he is satisfied that the signature of the candidate or the proposer on the nomination paper is not genuine.” 6. Section 52 of the Act deals with the presentation of nomination paper and its requirements for treating it as a valid nomination. Sub-section (1) of Section 52 alone is relevant in the present case which reads thus: “(1) On or before the date appointed under clause (a) of Section 49, each candidate shall, either in person or by his proposer, between the hours of eleven O' clock in the forenoon and three O' clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under Section 50, a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.” CRP No.647/08 - 8 - The nomination paper has to be submitted in the prescribed form as duly signed by the candidate and by an elector of the constituency as proposer within the time limit fixed for its presentation by the candidate in person or by his proposer to the returning officer is the spirit and purport of the above sub-section. 7. How the nomination of a candidate has to be made is prescribed by Rule 6 of the Rules, of which, for considering the issue involved, clause (1) of that Rule alone is relevant, which reads thus: “(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.” A nomination of a candidate to the election has to be made by filling up of a form containing the details in Form No.2 of the Rules, and that form shall be given by the returning officer on free of cost to any elector in the electoral roll of the constituency of the Panchayat on his application. The provision made as above in the Rules indicate that only an elector in the electoral roll of any constituency of the concerned panchayat can nominate a candidate for the election to the CRP No.647/08 - 9 - constituency and such nomination has to be made in Form No.2 appended to the Rules which can be obtained free of cost on an application to the returning officer. Form No.2 in the Rules states the particulars to be furnished in the nomination paper of a candidate to contest the election to a constituency in the Panchayat. Over and above furnishing all the particulars stated therein (serial Nos.1 to 11) the proposer of the candidate who has to be an elector in the electoral roll of that constituency, and also the candidate have to make separate declarations as given under the form with their signature and name. The declaration to be given by the proposer in the nomination paper which alone need be looked into, as covered by Form No.2 reads thus: “I,.............................elector No............................ in the electoral roll of ............................... Constituency No.................................of .................Village Panchayat/Block Panchayat/District Panchayat propose the candidate mentioned in this nomination paper and declare that I have not made any other proposal than this. CRP No.647/08 - 10 - Signature of proposer Name of proposer” 8. So far as the present case is concerned, it is undisputed that the elector who proposed the first respondent had proposed another candidate also from the same constituency, the third respondent, to the election. Proposal made by that elector for two candidates to the election is against his declaration in the nomination paper and as such it affects the validity of both nomination papers proposed by him is the case of the revision petitioner. Whereas the first respondent contends that the declaration of the proposer which is to be given in Form No.2 in no way affects the validity of the nomination as it is not so stated by any of the provisions of the Panchayat Raj Act or the Rules as a ground for rejecting the nomination, and further the time factor as to the presentation of the nomination of the two candidates by the same proposer having the declaration as above has crucial relevance and since the nomination of the first respondent was presented earlier to that of the third respondent, at any rate, the nomination paper of the third respondent alone could have been rejected on account of the declaration made by his proposer. 9. The cardinal question that emerges for consideration in the CRP No.647/08 - 11 - revision is whether the declaration of the proposer made in form No.2 has decisive value in the reception of a nomination paper of the candidate, in as much as the falsity of the statement made thereunder would render the nomination unworthy of acceptance. The proposer, an elector to the constituency, admittedly, proposed two candidates, first respondent and another is not under dispute. The declaration in form No.2 made by him, leaving the question at what point of time it was made by the respective candidates in form No.2, the nomination paper, was not only not correct but false as and when such nomination papers were scrutinised by the returning officer. The argument canvassed by the learned counsel for the first respondent that the validity of the nomination paper with respect to the declaration made by the proposer in the scrutiny should be verified with reference to the time of presentation of the nomination papers relating to the respective candidates has no merit. The enquiry that is conducted by the returning officer with respect to the validity of the nominations as under Section 55 of the Act is only a summary enquiry as spelt out of sub-section (2) of that section. Further more, it is not the point of time of presentation of the nomination papers of the candidate but the truthfulness of the CRP No.647/08 - 12 - declaration made by the proposer that he has not made any proposal in respect of any other candidate that is material and when that declaration is found to be false, the necessary consequence must follow that the proposal of the candidate by such an elector cannot be accepted and the nomination tendered with such proposal liable to be rejected. Learned counsel for the first respondent contended that a candidate will not have any control over his proposer to interdict him from making any proposal in respect of another candidate after a proposal had been made in his nomination paper under form No.2 and as such an enquiry as to the point of time when the nomination paper was presented may be relevant to examine which one of the nomination papers proposed by such a proposer is acceptable. I do not agree. Whether the candidate has any control over the proposer with respect to his proposing of more than one candidate is irrelevant and immaterial when the declaration in form No.2 indicate in unmistakable terms that there is an interdiction on the proposer that he can make a proposal for only one candidate in the constituency in which he is an elector. So much so, in a summary enquiry by the returning officer under Section 55 of the Act the returning officer is expected and need look into the question whether CRP No.647/08 - 13 - the proposer had made a false declaration by proposing more than one candidate in the election from the constituency. 10. The larger question, however, remains in the given facts of the case whether the falsity of the declaration in form No.2 by a proposer of the candidate would amount to violation or infringement of any of the provisions of the Act or the Rules. So, it has to be examined whether such a false declaration would fall within the ambit and scope of Section 55(2)(b), one of the grounds for rejection of a nomination paper, for the reason “that there has been failure to comply with any of the provisions of Section 52 or Section 53.” Sub- section (1) of section 52 which has been reproduced earlier would show a valid nomination must be in “a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.” The Rules which have been framed and published by virtue of the powers contained under various sections of the Act, including Section 52, in consultation with the State Election Commission stipulates under sub-rule (1) of Rule 6, which has been reproduced earlier, the candidate shall be nominated by means of a nomination paper in form No.2 over and above the particulars of the candidate as well as the proposer in respect of the CRP No.647/08 - 14 - matters specified thereunder subscribed with declaration by both the candidate and also his proposer in the manner specified thereunder. A declaration from the proposer must contain his name, elector number in the electoral roll of the constituency of the Panchayat and also that he has not made any other proposal than what is covered by that nomination paper. Declaration demanded from the proposer and also from the candidate form an integral part of the nomination paper and the falsity of the statements made thereunder has to be considered as fatally affecting the validity of the nomination. An interdiction is placed on the proposer under the declaration that as an elector of the constituency, he should not make any proposal other than the one covered by the nomination before in respect of the candidate who is proposed by him. Rule 6 of the Rules prescribing from No.2 with the declarations from the proposer and candidate as stipulated therein read with Section 52 of the Act give a clear indication that the declaration in form No.2 is part of the nomination paper and a valid submission of the nomination would include subscribing to a declaration which, if found false, liable to be fatal to the nomination. Panchayat Raj Act and also the Election Rules do not specifically provide that a wrong statement in the declaration of the CRP No.647/08 - 15 - proposer would affect the validity of the nomination paper nor even the requirement of such a declaration, which was canvassed by the learned counsel for the first respondent to contend that any defect in the declaration will not be sufficient to reject the nomination, as discussed earlier, is not correct as form No.2 prescribed by the Rules take with it the declaration stipulated. A false statement made in the declaration made in form No.2 by the proposer of a candidate and his proposing of more than one candidate as an elector to the constituency by making such false statement in his declarations in the respective nomination papers of more than one candidate have to be treated as an infringement of Rule 6 and failure to comply with the provisions under Section 52 of the Act. In this context, the decision rendered by this court in Alibava v. Returning Officer (2001(2) KLT 672) has some significance. That was a case where neither the Rules or the Act nor even the provisions of the byelaws of the Co- operative Society mandated the presentation of an affidavit with the nomination paper to contest in an election to become a member of the managing committee of that society. But the general assembly of the society prescribed a form of nomination for election which required the filing of an affidavit also with the nomination. The CRP No.647/08 - 16 - challenge raised against the rejection of the nomination paper of a candidate for nonsigning of the affidavit tendered with the nomination paper on the plea that there was no provision in the Co- operative Societies Act or Rules and also in the byelaws of the society was repelled by this court. The affidavit required to be submitted with the nomination paper as prescribed or adopted by the society is part of the nomination paper and nonfiling of an affidavit affects its validity was the considered view taken by this court. No provision in the byelaw or amendment in the byelaw of the society, it was held, was required to make the affidavit part of the nomination prescribed or adopted by the society. It was further held that the form of declaration subscribing the affidavit is part of the rule as covered by Rule 35(3)(c)(i) of the Co-operative Societies Rules. It has to be ruled Rule 35(3)(c)(i) of the Co-operative Societies Rules does not even prescribe a form for nomination to the election of the managing committee of the society whereas Rule 6 of the election rules prescribed that nomination paper should be in form No.2 under the Rules. Such being the position, I find that the rejection of the nomination paper of the first respondent by the returning officer for the reason that the declaration made by his proposer that he has not CRP No.647/08 - 17 - proposed any other candidate was proper, valid and correct. So much so, the impugned judgment of the learned District Judge reversing the dismissal of the election petition by the learned Munsiff, setting aside the election of the petitioner is unsustainable under law. The impugned judgment passed by the learned District Judge is set aside and the order passed by the learned Munsiff dismissing the election petition is restored. Revision is allowed. srd S.S. SATHEESACHANDRAN, JUDGE