Kerala High Court
Ramachandran Kadanappalli vs K.P. Noordeen on 22 October, 1987
Equivalent citations: AIR1988KER141, AIR 1988 KERALA 141
ORDER S. Padmanabhan, J.
1. In the general election to the Kerala assembly held in March 1987, petitioner, respondent and 11 others contested for the Peravoor No. 15 seat. Real contest was between the petitioner and respondent. Petitioner representedCongress (S) an ally of the L.D.F, and the respondent was the Candidate of Congress (I), an ally of the U.D.F. Respondent was declared elected by a mojority of 1,805 votes. In his favour 47,817 valid votes were polled while petitioner secured only 46,012. Prayer is to declare the election of the respondent void.
2. The grounds alleged by the petitioner in support of his prayer are those coming under Section 100(1)(d)(iii) and 100(1) (b) as defined In the various provisions of Section 123 of the Representation of the People Act (for short, 'the Act'). The allegations are obtained in paragraphs 9 to 36 of the petition. The other paragraphs of the petition are general statements. Grounds alleged in the petition as well as the schedule and affidavit are only repetitions of the facts and particulars stated in paragraphs 9 to 36, Annexures are only supporting documents and tabulated statements of the particulars of the material facts.
3. For the sake of convenience in understanding I shall tabulate the allegations thus. (1) 2,000 applications for enlistment in the electoral rolls were received against the provisions of the Act and rules out of whom 640 persons mentioned in Annexure A were 'unauthorisedly included in the rolls. Out of them 256 persons were once deleted but now re-enlisted. (2) In violation of Section 62(3) and (4) of the Act the names of 253 voters were enlisted more than once in the list and they exercised their votes twice. A list of 262 instances of double voting is given in annexure I, (3) 455 persons below the age of 21 shown in annexure J were enlisted as voters and they exercised their franchise. (4) 60 persons who would have cast their vote in favour of the petitioner were illegally removed from rolls. (5) Several persons were included in the electoral rolls after the last day of nomination. One name alone was given. Items 1 to 5 were alleged to be at the instance of and under the influence of the respondent who was a Minister at that time for furthering the prospects of his election. (6) Respondent procured the assistance of Electoral Registration Officer (Tahsildar) for furtherance of his election prospects and used his telephone, (7) Inspite of objection from petitioner's party Shri. B. Krishnan, D.F.O. was appointed as Returning Officer who allowed his staff to interfere with counting. (8) P. Narayanan, gunman of the respondent, as Minister, was permitted inside the counting hall and allowed to threaten counting staff. Other officers of the forest department including P. P. Moidu were unauthorisedly allowed to be inside the counting hall and they interfered with the free discharge of the duties of the counting staff. (9) In booth No. 313 the presiding officer did not record the serial number of ballot papers and he did not give the declaration when using additional ballot box. Annexure K complaint was ignored. (10) Ballot box in Booth No. 13 was found opened and many ballot papers did not contain the signature of the presiding officer, The paper seal of the box also was found broken. Annexure M complaint to treat the entire ballot papers invalid was ignored by the Returning Officer on the ground that it was only an omission of the presiding officer to fix the lock position of the box. (11) Ballot box in booth No. 94 was found opened and the paper seal not in order. Annexure N (translation as Annexure N(a) complaint for a repoll in that booth was not allowed. (12) Postal ballots were not accompanied by proper declaration or properly attested affidavits. When Varghese Thomas elector No. 116 in booth 113 went to vote his vote was found cast by postal ballot.
4. (13) Using his influence as, a Minister the respondent got administrative sanction for developmental works in the constituency to influence the voters. Certain instances were given. (14) On the pretext of extending monsoon relief to girijans respondent distributed clothes to voters. (15) In order to further his election prospects respondent influenced on Mr. K. M. Varkey to stand as a candidate and forced to remain in the array of candidate. (16)Respondent made religious appeals to two electors by name Abdul Raheman and Abdulla to vote for him in the name of religion. (17) Electors were told that if petitioner wins they will have to escape to Pakistan. (18) K. P. George, agent of the petitioner in booth 111 was threatened by the respondent on the evening of 22-2-1987 with 'dire consequences' if he continues to work for the petitioner. (19) Gunman of the respondent intimidated the said George at the residence of P.P. Philip. (20) On 14-3-1987 when petitioner was sleeping in Rest House, Iritty after a sleepless night, the respondent managed to get a photograph of himself standing near the petitioner and got it published in the Kerala Kaumudi on 15-3-1987 in order to show his generosity and the laziness of the petitioner. (21) Respondent had his election committee office in the residential building of Dr. Rema, a Government Officer and procured her services to canvas for him. (22) Sreedharan, an E.D. employee of the postal department was retained by the respondent as his election agent. (23) Respondent procured the assistance of Balakrishnan of his personal staff for election work. (24)The assistance of Soman of his personal staff and Francis, B.D.O. were procured for canvassing and (25) on 8-3-1987 respondent inaugurated a branch of the Co-operative Agricultural Bank in the presence of Government Officers and influenced the electorate.
5. Broadly these allegations come under Section 100(1) (d) (iii), (iv) and Section 123 (1)A, 123(2), (3), (4) and (7) coming under Section 100(1) (b) of the Act. Respondent wanted the pleadings in the petition to be struck out under Order 6 Rule 16 and the petition itself rejected under Order 7 Rule 11(a) C.P.C. as not disclosing any cause of action. Both sides were heard on this preliminary objection.
6. Superintendence and control of the election right from the preparation of electoral rolls up to the declaration of the result is entrusted under Article 324 of the Constitution to an independent body like the Election Commission which is invested with wide powers under the Act and Rules. The Act and the Rules and the directions and instructions given by the Election Commission under the authority of the Act and Rules provide safeguards at each and every level to maintain priority of election and see that the ballot represents the free will of the electorate. There are ample provisions for rectification of irregularities in the electoral rolls before finalisation. If during the election campaign or the actual poll itself any irregularity or illegality is committed by or on behalf of any candidate the Act and Rules and guidelines are not lacking in sufficient provisions and machineries for rectification on complaints. During poll sufficient participation is given to the candidate and his agents to be on the watch for preventing illegalities, like impersonation, hiring and user of vehicles and the like and make complaints. Counting is done with the participation of the candidates through their agents who are provided with all facilities in preventing malpractices. These provisions are made in the anxiety of the legislature to ascertain the true and free will of the people after exercising independent volition as to who should govern them in the democratic set up. Even after counting the candidate or his election agent is given the right to ask for a recount if sufficient grounds are there. Another reason for these stringent provisions and safeguards is that when once the will of the people is so exercised after the lapse of a particular period at the expense of time, manpower and huge financial commitment, the result should not be easily attacked to create a suspense or vacuum at the Governmental level.
7. To challenge an election is not a common law right or fundamental right or a right in equity. It is a statutory right created by the provisions of the Act and it could be had only within those provisions. Corrupt practices are more than criminal charges. The person who approaches the court challenging an election will naturally be having alt the accurate information's and the details of the grounds on which he could challenge the election. After a keen contest where normally political parties are facing each other there may be despair when election result is against expectations. Especially when the margin is narrow the desire will be greater to go in for a roving enquiry to challenge the result on the expectation of fishing out materials through court on the basis of omnibus allegations. That is why Section 81 says that an election could be challenged only on any one or more of the grounds specified in Sections 100(1) or 101 which means that grounds under Section 123 are also there. In making the challenge the Parliament in its wisdom wanted the pleadings to be controlled by Section S3 which says that all material fads on which the petitioner relies and when there is an allegation of corrupt practice the fullest particulars thereof including the persons, places, date, lime etc. should be alleged. Whenever the corrupt practice is not by the returned candidate or his elect ion agent, law requires their consent also to be pleaded and proved with all details. A person could approach the court with an election petition only if he can present before court item by item each and every corrupt practice and other grounds with exactitude and details. He cannot enlarge the scope of the allegations' by later information's and evidence. He must stand or fall on the specific allegations and details pleaded and cannot expect them to be developed by evidence. The portion is well settled by authoritative pronouncements of the Supreme Court and various High Courts and I need not refer to them.
8. What are material facts and what are full particulars is also now settled by judicial pronouncements. Material facts in Section 83(1)(a) correspond to Order 6 Rule 2,C.P.C. and particulars in Section 83(1)(b) are analogous to Rules 4 and 6. The absence of a single material fact will be fatal to the challenge making the cause of action in complete rendering the pleading liable to be struck out under Order 6, Rule 16, C.P.C. which is made applicable under Section 87. That defect cannot be allowed lobe cured by amendment on account of the prohibition contained in Section 86(5). Amendment or amplification of the particulars on the basis of the material facts of the corrupt practices alleged are also only in the discretion of the court when it is found necessary for ensuring a fair and effective trial. A person who approaches the court with bald allegations without details cannot fish out materials and amend his pleadings later. The person, who makes the allegations must specify the details as to how he got those information's and the details and he must take up the responsibility of the allegations also. That is why Section 83(c) says that the petition will have to be verified and signed by the petitioner in the manner provided in the C.P.C. for verification of pleadings and the proviso and Section 83(2) says that when there is an allegation of corrupt practice there must also be an affidavit in support of the allegations and the schedule and annexure other than those containing evidence alone also will have to be so verified. The verification which will have to be in Form 25 must specify which are the allegations based on information and which are based on knowledge and belief. Details of the sources of information, knowledge or belief also will have to be stated. Then only the court will be able to assess the veracity of the statements. Otherwise the petitioner may have a choice according to his subsequent fertile imagination to give evidence regarding the sources. In this case the schedule as well as the annexures contain material facts and particulars of the causes of action alleged in the petition, though not in sufficient particulars and details. In the petition schedule, affidavit and annexures the verification is only "true to my knowledge and belief" without giving any other details. The sources of information or knowledge are not stated anywhere. Such a verification can be made by anybody with liberty to embellish them by evidence. For this and this reason alone it has to be found that the petition is not properly presented.
9. What are material facts and particulars have been decided by the Supreme Court in Udav Singh v. Madhav Rao Scindia, AIR 1976 SC 744 and various other decisions. On the basis of these decisions the learned counsel for the petitioner himself conceded that the allegations contained in paras. 13, 25, 27and 32 of the petition and their counterparts in affidavit, annexures and schedules will not stand. In my opinion the concession was correct and hence I am not going further into the merits of these matters.
10. Allegations in paras. 9 to 15 of the petition are those mentioned by me as items 1 to 5 in para. 3 of this judgment. One of the items included therein is duplication of voters and double voting. Duplication in the rolls by itself will not give any cause of action even though it has to be avoided. It will give a cause of action under Section 62(3) only when such persons exercised their franchise more than once. Except a bald statement in para. 11 of the petition "these electors cast their votes twice at the general election" no other material facts or full particulars regarding that cause of action is given except filing Annexure l which is not properly verified and which does not say anybody among them voted twice. The source of information is not stated. Normally these information's could have been authentically obtained only from the polling agents in the respective booths who might have noted in the copy of the electoral rolls with them. These rolls were not produced and information is not stated to have been obtained from them or anybody else. If that is the position and if these information's were received from some other sources those sources and the details ought to have been alleged in order to give notice to the elected candidate and afford an opportunity to the court to ascertain whether the petitioner came with proper grounds on adequate information.
11. The other a negations in paras. 9 to 15 of the petition are practically complaints against the electoral rolls in having included ineligible voters including minors and deleted eligible persons. Of course there is one allegation that after the last date for nomination the names of several persons were included. If that is correct it will be violation of the prohibition contained in Section 26(3) of the 1950 Act and merely by reason of entry in the electoral rolls such a person will not get entitlement to vote under Section 62(1) of the 1951 Act. The reason is that as held in Ramji Prasad Singh v. Ram Bilas Jha, AIR 1976 SC 2573 entitlement under Section 62(1) is on account of the entry in the roll "for the time being in force", which must be taken as "for the time being entered in the electoral roll in accordance with law". The entry in violation of Section 26(3) will not be in accordance with law. But that aspect need not detain me because material facts regarding such prohibited entries were not given in the petition. The name of one person, so entered alone is stated. The date of entry is not given. No further details were given and no document was also produced. Source of information is also not stated. If so, no cause of action is alleged.
12. The allegations regarding wrong inclusion, wrong deletion and inclusion of persons below 21 years of age also are not supported by material facts and details. Even taking for granted that material facts are there, then also the contention cannot stand because it cannot operate as a cause of action for the reason that such a ground is not available to challenge an election. Preparation and finalisation of electoral rolls is the province of the election commission and its officers. Whether or not revision of rolls is undertaken and whether or not objections are disposed of, the electoral rolls for the time being in force must hold the field in spite of errors or pendency of appeals. Validity of any vote exercised under the provisions of the Act could be determined only under those provisions and not otherwise. Entries in electoral rolls are final and cannot be challenged either before court or before the Tribunal considering the validity of the election. Whether a person is a minor or not and has to be included in rolls is the duty of the electoral officers and not for the court to decide. A person whose name is in the rolls on the last day of the nomination is entitled to vote unless it is shown that he is prohibited by any provision from voting. When the name of a person is included in the electoral rolls his qualification to be included cannot be called in question before a court either when he tries to cast his vote or to stand for election or even after the election is over, the only exception being Article 173 of the Constitution. (See AIR 1985 SC 1233, AIR 1970 SC 340, AIR 1973 SC 2362 and AIR 1976 SC 2573). If so, these contentions cannot give rise to any cause of action.
13. The allegations in para. 16 of the petition covered by points 6 to 8 in para. 3 of this judgment are vague and general and lacking in material facts and particulars. The appointment of Krishnan as D.F.O. in 1986. and at whose instance are not material facts. The alleged irregularities done by him and other persons mentioned in that para are vague and without any material facts or particulars capable of being answered. It is not known under what provision of the Act these allegations are intended to cover. If it is under Section 100(1)(d)(iv) the details of the exact non-compliance of any provision of the Act, rules or orders are not mentioned. Details of the non-compliances are not stated. It is not even alleged that the result of the elect ion, in so far as the returned candidate is concerned, has been materially affected thereby, and if so, how. If it is intended as allegations under Section 123(7) coming under Section 100(1)(b) then also material facts and particulars are lacking and there is no allegation that the services of these persons were obtained or procured by the respondent or his election agent or any other person with their consent. The particulars in those connections are also not alleged. Para. 16 does not disclose any cause of action at all.
14. Points 9, 10 and 11 covered by paras. 17 and 18 of the petition deal with tampering of ballot boxes in booths numbers 13 and 94, absence of declaration when additional ballot box was used in booth 13, omission to enter serial numbers of ballot papers issued in booth 13, absence of signature of the presiding officer in ballot papers, deliberate tampering of ballot boxes by the returning officer and his refusal to postpone declaration of result or conduct repoll. These are allegations coming under Section 100(1)(d)(iv) namely non-compliance of the provisions of the Act, rules or orders. (Rules 38 and 55 and Section 58). These aspects need be looked into only if all the material facts are stated and it is further alleged that it has materially affected the result of the election in so far as the returned candidate is concerned. Unfortunately there is no such allegation even. It is admitted that in both the ballot boxes the Returning Officer did not notice any tampering. Even though it is alleged in para. 17 that paper seal of ballot box in booth 13 was found broken, photostat copy of the complaint filed in that respect by the petitioner himself as Annexure M shows that he admitted that the paper seal was not broken. It is stated in para. 17 itself that the Returning Officer found that there was only an omission on the part of the presiding officer to fix the lock position of the box. It is further admitted that ballot papers were examined by the Returning Officer and 24of them were rejected. All the material facts necessary to constitute the allegation of tampering were not stated. The allegation that it was deliberately tampered with or allowed to be tampered with by the Returning Officer is also not supported by any material facts. That is the case with booth No. 94 also. It is not alleged how the petitioner got this information. The verification also does not disclose whether the allegations arc on the basis of information, knowledge or belief, and if so, how. Without specifying the source of information or knowledge or belief, evidence cannot be let in and it cannot be taken that complete cause of action is alleged. It is only a fishing expedition to collect materials without proper allegations.
15. Scrutiny of ballot boxes is the duty of the Returning Officer under Rule 55. Under Rule 55(2) he need only satisfy the counting agents present that the paper and other seals are intact. Under Rule 55(3) it is only the satisfaction of the Returning Officer that none of the ballot boxes has been tampered with that is necessary. That does not mean that his satisfaction cannot be questioned in court. But such questioning must be on proper and adequate grounds with material facts. The question of absence of declaration itself wit arise only when it is alleged that addition a ballot box was used and it is so alleged will material facts. No specific omission to enter serial number of ballot papers or put signature: is mentioned. Even if there are such omissions those omissions by themselves are no ground to reject any ballot paper in the absence o any other invalidity in view of Rule 38 taken along with the proviso to Rule 56(2) and the decision reported in Hari Vishnu v. Ahman Ishaque, AIR 1955 SC 233. There is thus no material to show that counting of ballot paper in booths Nos. 13 and 94 or the refusal to postpone declaration of result or conduct repoll were in any way violations of an provision in the Act, rules or orders. The margin with which respondent won the electricity is 1805 votes. The mere fact that the petitioner has not included a prayer for declaring hi elected under Section 101 is presumptive the fact that the petitioner concedes that the result of the election, in so far as the returned candidate is concerned, is not materially affected by the facts alleged in the petition, even if they are taken as true.
16. The allegation in para. 20 of the petition referred to as item 12 in para. 3 of this judgment relating to postal ballots is vague and general without any details. Details of the ballot papers were not given. Which ballot papers did not contain proper declarations or which of them are not properly attested (or) without seals is not stated. No materials are supplied to show that the vote of Varghese Thomas was exercised by somebody through postal ballot. The details of the postal ballot are not given. There is no allegation supported by material facts or details that the result of the election, in so far as the returned candidate is concerned, has been materially affected as a result of the facts contained in these allegations. As held in AIR 1987 All 279, though consent of the candidate is dispensed with the cases coming under Section 100(1)(d), pleadings and proof that the result in relation to the returned candidate was materially effected is absolutely necessary.
17. Item 15 in para. 3 of this judgment eferred to in para. 27 of the petition is an allegation coming within Section 123(1)(a). Any gift, offer or promise, with the object directly or indirectly of inducing a person to stand or lot to stand or withdraw or not to withdraw, is necessary. Here there is no such allegation. The only allegation is that Varkey was nfluenced to stand and not to withdraw. On his ground, as earlier stated, this allegation as conceded to be without cause of action.
18. Another set of allegations is that respondent exerted undue influence over the lectors by managing to get administrative motion for certain developmental works. except the vague statement that "respondent lanaged to get administrative sanction" no other material facts or particulars are alleged. he allegation regarding distribution of clothes are also lacking in material facts and particulars. These are allegations coming under 123(2). Religious appeal coming under 123(3) alleged in para. 28 is only against to voters whose full add ressorelectoral roll numbers were not given. Date, time, place, the exact appeal or the persons in whose presence the appeal was made or the source of information were not stated. The allegation that K. P. George was threatened, coming under Section 123(2) is also lacking in such particulars. The only words used are "dire consequences".
19. Para. 30 of the petition containing the allegation that petitioner's photo was taken and published in the sleeping position with the respondent standing near him is also lacking in material facts and particulars. That allegation comes under Section 123(4). What is required under Section 125(4) is publication of a statement which is false or which the respondent either believes to be false or does not believe to be true, in relation to the personal character or conduct. The only allegation is that the photo was published at the instance of the respondent. That paper itself is not produced. It is doubtful whether a photo will come within the word 'statement'. Even taking for granted that it will come, I do not understand what is false therein in relation to personal character or conduct. The contention that the photo is likely to depict the petitioner as a lazy fellow and make out the respondent as a benefactor coming to his rescue in spite of the conduct in election seems to be fanciful and the result of vicious thinking. The allegation does not disclose any cause of action under Section 123(4).
20. The allegation that electors were told that they may have to escape to Pakistan if the petitioner wins is too vague without any material facts or particulars. The allegations regarding procuring the assistance of certain Government officers is also too vague without any material facts or particulars. It appears that the petitioner was interested only in adding to the number of allegations without caring to ascertain the material facts or particulars, probably thinking that the number of allegations will add strength to his prayer. In order to attract Section 123(7) the officers must come under certain categories. Whether the E.D. employees or some others will come under that category is not stated.
21. For all corrupt practices, if they are not by the candidate or his election agent, their consent is an essential ingredient. It is the vital link that connects the returned candidate with the corrupt practice. In order to constitute corrupt practice coming under Section 123(7) it is not enough to show that somebody did it. Obtaining or procuring by the returned candidate or his election agent or if by any another person it was with the consent of either of them must be alleged and proved. Who obtained or procured the assistance, how it was obtained or procured, how it was said that it was with the consent of the candidate or his election agent, when and where it was procured, what was the assistance and how and in what manner it was in furtherance of the election prospects are all details to be alleged. Without such particulars the cause of action will not be complete. 1986 (Supp) SCC 315 : (AIR 1986 SC 1253). Many persons interested in a candidate may resort to canvassing by corrupt practices on behalf of the candidate without his knowledge or consent. The responsibility of the candidate or the election agent in that respect will have to be established before penalising him.
22. Undue influence coming under Section 123(2) includes undue influence under Section 171, I.P.C. The two provisos to Section 123(2) take in something more. But it has to be remembered that canvassing is the essence of election. It is as important as the right to vote. The candidate and his supporters are entitled to canvass and influence the electors in his favour. Something more than canvassing is required to make it a corrupt practice to come under Section 123(2). It must be a tyranny over the mind of the elector leaving no chance to exercise his free volition. Threat of injury to a candidate or a voter under Section 171C(2-a), I.P.C. or inducing a belief as stated in the two provisos will be undue influence. (AIR 1984 SC 309).
23. Anything done by a candidate before his candidature for gaining popularity in the constituency with an eye on the ultimate candidature will not come within the provision. In what the successful Candidate is alleged to have done there must be an element of bargaining. If a Minister, as alleged in this case, redresses the grievances of the people of his constituency or renders them any help on the eve of election, it is not a corrupt practice unless it is alleged and proved that he obtained promises from the voters in return, as a condition for his help. There is no such allegation here. The allegations and evidence must show it clearly that there was a promise or gift directly or indirectly made to an elector to vote or refrain from voting at an election.
In order to constitute corrupt practice the influence or threat must be calculated to interfere with the free exercise of electoral right and to leave no choice to the electors in the matter. Some developmental works alone in the constituency by a Minister on the eve of election will not attract Section 123(2) without other allegations. I
24. Judged in the light of these principles what I was able to notice from the allegations in the petition is that the petitioner is not having any concrete material facts constituting any cause of action and he is not aware of any material particulars also. Somehow or other in a fortune hunting he wants to fish out materials by evidence on the basis of vague and incomplete whimsical causes of action in his anxiety to see that the election is set aside. Such an attempt is not allowed by law. Those who approach the court with concrete and complete facts constituting causes of action coming within the provisions of Sections 100(1), 101 and 123 and supported by the fullest particulars alone are entitled to engage the precious time of the court in a trial to set at naught the results' of election held with all precautions and heavy State expense. At any stage including the stage at which the petition is filed the court is entitled to shut its doors to others. Even though dismissal of a petition is not provided under Section 86 for non-compliance of Section 83, Section 87 taken along with Order 6, Rule 16 and Order 7, Rule 11, C.P.C. makes it not-only the right but the imperative duty of the court to strike out such pleadings and reject the petition itself if no further cause of action remains.
Paras. 9 to 36 and grounds A to X in the election petition are hereby struck out under Order 6, Rule 16, C.P.C. as un necessary frivolvous or vexatious and which may tend to delay fair trial. No further cause of action remains and hence the petition itself is rejected under Order 7, Rule 11 (a) as not disclosing any cause of action. It is only fair and proper that the respondent is awarded his costs under the circumstance and I do so quantifying the same at Rs. 1500/-.