Kerala High Court
K.N.Balagopal vs N.K.Premachandran on 7 January, 2020
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
ELE. PETITION NO.1 OF 2019 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 07TH DAY OF JANUARY 2020 / 17TH POUSHA, 1941
El.Pet..No.1 OF 2019
PETITIONER:
K.N.BALAGOPAL
AGED 55 YEARS
S/O. P.K. NARAYANA PANICKER, SREENIKETHAN, MAVANAL
HOUSE, KALANJOOR P.O, PATHANAMTHITTA DISTRICT-
689694.
BY ADVS.
SRI.P.K.VARGHESE
SRI.P.P.BIJU
SRI.P.S.ANISHAD
SMT.M.B.SHYNI
SRI.R.JYOTHI KRISHNAN
SMT.LIMNA BHASKARAN
SRI.P.T.MANOJ
SMT.SANJANA RACHEL JOSE
SHRI. SHIJOB M J
RESPONDENT:
N.K.PREMACHANDRAN, AGED 59 YEARS,
S/O. KRISHNA PILLAI, MAHESWARY CANTONMENT,
P.O. KOLLAM-691001.
R1 BY ADV. SRI.S.SREEKUMAR (SR.)
R1 BY ADV. SRI.P.MARTIN JOSE
R1 BY ADV. SRI.THOMAS P.KURUVILLA
R1 BY ADV. SRI.M.DINESH
R1 BY ADV. SRI.R.GITHESH
R1 BY ADV. SRI.MANJUNATH MENON
R1 BY ADV. SHRI.HARIKRISHNAN S.
R1 BY ADV. SMT.HANI P.NAIR
THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON
07.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ELE. PETITION NO.1 OF 2019 2
P.B.SURESH KUMAR, J.
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Election Petition No.1 of 2019
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Dated this the 7th day of January, 2020
ORDER
This is an election petition under the Representation of People Act, 1951 (the Act) calling in question the election of the respondent to the Seventeenth Lok Sabha from Kollam Parliamentary Constituency. The respondent entered appearance in the proceedings and filed written statement. Along with the written statement, the respondent preferred I.A.No.3 of 2019 seeking orders for hearing the maintainability of the election petition as a preliminary issue and also to consider the question as to whether the election petition is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure for want of cause of action. In the affidavit filed in support of the said interlocutory application, it is stated by the respondent, among others, that the election petition does not disclose any cause of action. According to the respondent, the election petition, in the circumstances, is liable to be rejected under Rule 11 of Order VII of the Code of Civil Procedure, 1908.
2. In the light of I.A.No.3 of 2019, the learned counsel for ELE. PETITION NO.1 OF 2019 3 the parties on either side were heard on the question of maintainability of the election petition.
3. Before proceeding to consider the maintainability of the election petition, it is necessary to outline the basic facts relating to the election which is called in question, and the case set out by the petitioner. The election to the Seventeenth Lok Sabha was declared by the Election Commission of India on 10.03.2019. The notification for the election was issued on 28.03.2019. The last date for filing nomination was 04.04.2019. The polling was held on 23.04.2019. The votes were counted on 23.05.2019 and the respondent, who was the candidate fielded by the United Democratic Front (UDF), was declared elected by a margin of 1,48,856 votes over the petitioner, a candidate fielded by the Left Democratic Front (LDF).
4. The petitioner seeks orders declaring the election of the respondent to be void on various grounds. It is alleged in the election petition that on 25.3.2019, in the meeting organised by UDF at the premises of a cashew factory namely 'Beena Cashew Factory', the respondent has addressed the workers therein in such a manner as to promote feelings of enmity between them on the grounds of religion, caste and community and also as to induce in them a belief that they would be subjected to divine displeasure and spiritual censure, if they cast their votes in favour of the petitioner. The speech ELE. PETITION NO.1 OF 2019 4 delivered by the respondent on that occasion as extracted in the election petition is a sarcastic one, the essence of which is that the leaders of the political party to which the petitioner belongs, who are not believers, have taken the pain somehow to ensure the entry of women of all ages in Sabarimala temple and thereby insulted the believers of the temple. It was also mentioned in the said speech that the leaders of the said political party would also ensure that women offer prayers along with the male folk in Mosques during the "Juma" prayers of Muslims on Fridays and that the Christian Churches are administered by Government Officers and would thereby insult the believers belonging to those communities. It is also alleged in the election petition that on the same day after the speech, the respondent has given specific instructions to the UDF workers who were present at the meeting that all of them shall make earnest efforts to convey the contents of the speech to every voter in the locality in the course of their house-to-house campaign. It is also alleged in the election petition that on 25.3.2019, as instructed by the respondent, UDF workers made an appeal to the voters who belong to Hindu community to refrain from casting their votes in favour of the petitioner pointing out that he is not a believer of Lord Ayyappa and it is necessary therefore to elect the respondent to prevent entry of women of all ages in Sabarimala Temple and thereby prevent divine ELE. PETITION NO.1 OF 2019 5 displeasure and spiritual censure on that ground. It is also alleged in the election petition that on 28.3.2019 also, the respondent has delivered a speech similar to the one that was delivered by him on 25.3.2019 in another meeting organised by UDF at the premises of another cashew factory namely 'Kallumthazham Cashew Factory'. According to the petitioner, the aforesaid speeches and the campaign made by UDF workers at the venue of the meeting would amount to corrupt practices defined in Sections 123(2)(a)(ii), 123(3) and 123 (3A) of the Act.
5. It is also alleged in the election petition that on 16.4.2019, the respondent and a few active workers of UDF started their house-to-house campaign at a place called Sakthikulangara from the house of one Unni Gopalan, representing to the voters that the petitioner, if elected, would ensure entry of women of all ages in Sabarimala temple and the voters would become thereby an object of divine displeasure and spiritual censure. It is also alleged in the election petition that though the respondent left the squad after visiting the house of Unni Gopalan, as instructed by the respondent, the remaining members of the squad continued campaign throughout the day making the aforesaid representation and has canvassed votes on that basis.
6. It is also alleged in the election petition that on ELE. PETITION NO.1 OF 2019 6 13.4.2019, in a meeting of UDF workers convened at the residence of one Kiran Raj, the election agent of the respondent Sri.Philip. K.Thomas rendered a speech calling upon those who were present at the meeting to conduct home to home campaign mainly on Sabarimala issue pointing out that if the petitioner is elected, he would ensure entry of women of all ages in Sabarimala temple. It is also alleged in the election petition that on 14.4.2019, as instructed by the election agent of the respondent, UDF workers present at the said meeting conducted house-to-house campaign on the aforesaid basis.
7. It is also alleged in the election petition that on 15.4.2019, the respondent has made a statement to a journalist for telecast in Mathrubhumi news channel that the petitioner has formulated a scheme for securing votes by giving money and is taking necessary steps for the said purpose, and the same has been telecast on the said day in the said channel continuously with the knowledge, consent and specific direction of the respondent so as to cause harm to the petitioner and also to get more votes to the respondent on that basis. According to the petitioner, the aforesaid statement in relation to the personal character of the petitioner is false and even the respondent does not believe it to be true, and the conduct of the petitioner would amount to the corrupt practice defined in Section 123(4) of the Act.
ELE. PETITION NO.1 OF 2019 7
8. It is also alleged in the election petition that on 21.4.2019, one C.V.Anil Kumar and a few other UDF workers, while conducting house-to-house campaign at Polayathode Kappalandimukku Municipal Colony, informed voters that LDF workers would approach them with money for votes and they shall not accept money from them. It is alleged that the aforesaid campaign was made deliberately with a view to tarnish the image of the petitioner with the consent of the respondent. It is also alleged in the election petition that on 21.4.2019, one Suresh Babu and a few others were found engaged in house-to-house campaign for the respondent and the aforesaid persons also, in the course of their campaign, represented to the voters of Polayathode Shanthi Nagar colony falsely that the LDF workers would approach them with cash for votes, with a view to tarnish the image of the petitioner. According to the petitioner, the aforesaid conduct of the persons mentioned would also amount to the corrupt practice defined in Section 123(4) of the Act and the result of the election, in so far as it concerns the returned candidate, has been affected thereby.
9. It is also alleged in the election petition that on the complaint dated 9.4.2019 preferred by the secretary of the LDF Central Election Committee, the District Collector, Kollam conducted an enquiry and warned the respondent for having violated para 4.2.2 of ELE. PETITION NO.1 OF 2019 8 the Model Code of Conduct of the election by making indirect appeals to the religious feelings of the electors. According to the petitioner, the result of the election, in so far as it concerns the returned candidate, has been affected on account of the aforesaid conduct on the part of the respondent also.
10. The learned Senior Counsel for the respondent has taken the court through the elaborate pleadings in the election petition, and contended that the same do not make out a cause of action for the petitioner to claim the relief sought in the election petition. The learned Senior Counsel has placed reliance on a large number of decisions of the Apex Court, in support of the elaborate submissions made by him.
11. Per contra, the learned counsel for the petitioner contended that the pleadings in the election petition would certainly make out a cause of action for the relief claimed. The learned counsel for the petitioner has also placed reliance on a large number of decisions of the Apex Court in support of the elaborate submissions made by him. In order to avoid repetition, I am not referring to the submissions made by the learned counsel for both the parties and the decisions on which they placed reliance now, and I will be referring to the same in the course of the discussions herein below.
12. Before proceeding further in a matter like this, I must ELE. PETITION NO.1 OF 2019 9 remind myself of the fundamental principles relating to the election namely that an election contest is not an action in law or a suit in equity, but is purely a statutory proceedings unknown to common law and the court therefore possesses no common law power and that the success of a candidate who has won the election should not be lightly interfered with by courts, and interference if at all made, shall only be in accordance with the requirements of law.
13. Section 83 of the Act dealing with the contents of election petition provides that the election petition shall contain a concise statement of the material facts on which the petitioner relies and shall also set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such corrupt practice. Section 87 provides that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. Order VII Rule 11 of the Code of Civil Procedure makes it obligatory for the court trying a suit to reject the plaint where it does not disclose the cause of action. Order VI Rule 16 confers power on the court to strike out any matter in the pleading of a party which may ELE. PETITION NO.1 OF 2019 10 tend to prejudice, embarrass or delay the fair trial of the suit. In Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, 1987 Supp SCC 93, it was held by the Apex Court that if the court, on examination of the pleadings in an election petition, finds that it do not make out any cause of action or that the same may tend to prejudice, embarrass or delay the fair trial of the election petition, it shall strike out that part of the pleadings, and if the court finds that there are no triable issues after striking out the unnecessary pleadings, it has to reject the election petition under Order VII Rule 11 of the Code of Civil Procedure. In Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315, it was held by the Apex Court that the power under Order VI Rule 16 and Order VII Rule 11 shall be exercised by courts to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and the sword of Damocles is not kept hanging over the respondent without a point or purpose. In the said case, the Apex Court has also explained that the expression `material facts' contained in Section 83 of the Act as the facts which if established, would give the petitioner the relief asked for. In Samant N. Balkrishna v. George Fernandez, (1969) 3 SCC 238, the Apex Court has explained that the full particulars of corrupt practices, if any, alleged is insisted so as to present as full a picture of the cause of action with such further information in detail as to make the opposite ELE. PETITION NO.1 OF 2019 11 party understand the case he will have to meet.
14. Having thus understood the principles of law as to the manner in which the pleadings in an election petition are to be analysed for the purpose of considering the question as to whether the same would make out a cause of action, I shall now proceed to analyse the pleadings paragraph-wise. The essence of the pleadings of the petitioner in paragraphs 6 to 16 of the election petition is that in the speeches rendered by the respondent on 25.3.2019 and on 28.3.2019 at two different places in the constituency, he has mentioned that the leaders of the political party to which the petitioner belongs, who are not believers, have taken the pain somehow to ensure the entry of young women in Sabarimala temple and thereby to insult the believers of the temple and also that they would somehow ensure that women offer prayers along with the male folk in Mosques during the "Juma" prayers of Muslims on Fridays and that the Christian Churches are administered by Government Officers, for insulting the believers belonging to those communities. It is also pleaded by the petitioner in the said paragraphs that on the same day after the first speech, the respondent has given specific instructions to the UDF workers who were present at the meeting that all of them shall make efforts to convey the contents of the speech to the voters in the course of their house-to-house campaign and that, as instructed by the respondent, ELE. PETITION NO.1 OF 2019 12 the UDF workers have made appeals to the voters who belong to Hindu community to refrain from casting their votes in favour of the petitioner pointing out that the petitioner is not a believer of Lord Ayyappa and it is therefore necessary to elect the respondent to prevent entry of women of all ages in Sabarimala Temple and thereby prevent divine displeasure and spiritual censure on that ground. According to the petitioner, the aforesaid speech would amount to the corrupt practices defined in Sections 123(2)(a)(ii), 123(3) and 123(3A) of the Act. The contention of the respondent as regards the aforesaid pleadings is that even if it is assumed that the respondent has made the alleged speeches, the same would not amount to the corrupt practices defined in Sections 123(2)(a)(ii), 123(3) and 123(3A) of the Act. It is also the contention of the respondent that even assuming that he has made such speeches and such speeches would fall within the scope of the corrupt practices alleged, the same does not make out a cause of action for the petitioner, as the respondent was not a candidate for election on those days.
15. The relevant portion of Section 123 of the Act covering sub sections (2), (3) and (3A) reads thus:
"123. Corrupt practices.
The following shall be deemed to be corrupt practices for the purposes of this Act:--
xxxxxx (2) Undue influence, that is to say, any direct or indirect ELE. PETITION NO.1 OF 2019 13 interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:
Provided that--
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who--
(i) threatens any candidate or any elector, or any person in whom a candidate or an elector interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
(b) a declaration of public policy, or a promise of publication, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.
(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:
PROVIDED that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.ELE. PETITION NO.1 OF 2019 14
(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate."
A reading of the extracted portion of the Section which defines the corrupt practices attributed to the respondent would indicate that the said provision would get attracted only in cases, (1) where the candidate or his agent, or any other person with the consent of the candidate or his election agent induces or attempts to induce an elector to believe that he will become or will be rendered an object of divine displeasure or spiritual censure, if he casts vote in a particular manner or (2) where the candidate or his agent, or any other person with the consent of the candidate or his election agent appeal to vote or refrain from voting any person on the ground of his religion or community or (3) where the candidate or his agent, or any other person with the consent of the candidate or his election agent promotes or attempts to promote feeling of enmity or hatred between different classes of voters on the ground of religion or community. It is conceded by the petitioner that the speeches referred to in the aforesaid paragraphs have been rendered by the respondent on and before the date of the notification of the election. It was also conceded ELE. PETITION NO.1 OF 2019 15 by the petitioner that on the aforesaid dates, the respondent could not have been treated as a candidate for the election as he has submitted nomination for the election only much later. If that be so, the speeches alleged to have been made by the respondent as referred to in the aforesaid paragraphs and the instructions alleged to have been given by the respondent to the UDF workers as referred to in the aforesaid paragraphs would not amount to the corrupt practices alleged, for, the respondent could not have been regarded as a candidate for the election on those dates to bring the allegations within the fold of the corrupt practices alleged [See Subhash Desai v. Sharad J. Rao, 1994 Supp (2) SCC 446 and Chandrakanta Goyal v. Sohan Singh Jodh Singh Kohli, (1996) 1 SCC 378].
16. Placing reliance on the decision of the Apex Court in Mohan Rawale v. Damodar Tatyaba, (1994) 2 SCC 392, the learned counsel for the petitioner submitted that even if it is found that the pleadings in paragraphs 6 to 16 of the election petition would not amount to allegations of corrupt practices in law by virtue of their commission prior to the respondent becoming a candidate, the same cannot be said to be irrelevant as they are required to be established for the purpose of probabilising the similar allegations of corrupt practices made in the latter paragraphs of the election petition. It is seen that in the said case, after holding that the allegations in ELE. PETITION NO.1 OF 2019 16 paragraphs 1 to 20 of the election petition would not amount to allegations of corrupt practices in law, by virtue of their commission prior to the respondent becoming a candidate, the Apex Court did not strike down those pleadings and left the question as to whether the same needs to be retained for the purpose of probabilising the similar allegations of corrupt practices made in the latter paragraphs of the election petition involved in that case to be considered by the court dealing with the election petition, as it was found that the pleadings in the remaining paragraphs in the election petition make out a cause of action for the petitioner to claim relief in the election petition. I fail to understand as to how the aforesaid judgment of the Apex Court would help the petitioner, as the corrupt practices pleaded in the remaining paragraphs of the election petition in the instant case are not similar, to be precise, do not relate to any of the speeches alleged to have been made by the respondent as in the case of the pleadings made in paragraphs 6 to 16 of the election petition. Further, even assuming that the corrupt practices pleaded in the remaining paragraphs of the election petition are similar in the instant case, the Apex Court has not considered the question as to whether such pleadings should be permitted to remain in the election petition for the purpose aforesaid to be a binding precedent for this court and the Apex Court has only left that issue to be considered by the High Court.
ELE. PETITION NO.1 OF 2019 17
17. Coming to the contents of the speeches alleged to have been made by the respondent, in the light of the specific pleadings made by the petitioner in the election petition, the same are to be examined separately in the context of the corrupt practices defined in Sections 123(2)(a)(ii), 123(3) and 123(3A) of the Act. Before undertaking the aforesaid task, it is necessary to mention that it is by now settled that use of hyperboles or exaggerated language or adoption of metaphors and extravagance of expression in attacking one party or a candidate are very common and court should consider the real thrust of the speech without labouring to dissect one or two sentences of the speech, to decide whether the speech was really intended to generate improper passions on the score of religion, caste, community etc and that in deciding whether a party or his collaborators had indulged in corrupt practice regard must be had to the substance of the matter rather than the form or phraseology (See Das Rao Deshmukh (Dr) v. Kamal Kishore Nanasaheb Kadam, (1995) 5 SCC 123. As noted, the substance of the speeches alleged to have been made by the respondent as extracted in paragraphs 6 and 12 of the election petition is that the leaders of the political party to which the petitioner belongs to, who are not believers, have taken the pain somehow to ensure the entry of young women in Sabarimala temple and thereby to insult the believers of the temple and that the leaders ELE. PETITION NO.1 OF 2019 18 of the said political party would somehow ensure that women offer prayers along with the male folk in Mosques during the "Juma" prayers of Muslims on Fridays and also that the Christian churches are administered by Government Officers, for insulting the believers belonging to those communities. According to me, the aforesaid speech cannot be understood as one inducing or attempting to induce the electors, to believe that they will become or will be rendered an object of divine displeasure or spiritual censure if they cast vote in favour of the LDF candidate, so as to affect the free exercise of their right to vote or refrain from voting at the election in order to attract the corrupt practice defined in proviso (a)(ii) of Section 123(2) of the Act. At the most, the speeches can be understood only as speeches conveying a message to the voters that the petitioner and the leaders of his political party would not respect the sentiments of the believers and they may even go to the extent of insulting them. What is brought as a corrupt practice under that provision is an inducement or an attempt for inducement of such a nature which ought not have given the electors a choice other than exercising their right of franchise in favour of the respondent [See Ram Dial v. Sant Lal and others, AIR 1959 SC 855].
18. The speeches aforesaid would not attract the corrupt practice defined in Section 123(3) of the Act also, as in order to attract ELE. PETITION NO.1 OF 2019 19 the said corrupt practice, there should have been an appeal in the speeches to vote or refrain from voting for any person for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate on the grounds of the religion, race, caste, community or language of (i) any candidate, or (ii) his agent, or (iii) any other person making the appeal with the consent of the candidate, or (iv) the elector and such an appeal is absent in the speeches. As noted, the speeches, if at all genuine, would convey the message that LDF would not protect the interest of believers.
19. The speeches aforesaid would not attract the corrupt practice defined in Section 123(3A) of the Act also, as in order to attract the said corrupt practice, the candidate or his agent or any other person with the consent of the agent should have promoted or attempted to promote feelings of enmity or hatred between different classes of citizens of India on the grounds of religion, caste or community for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of other candidates. The mere statements in the speeches that the petitioner and the leaders of his political party would not respect the sentiments of the believers and they may even go to the extent of insulting them, cannot be construed as promoting or attempting to promote feelings of ELE. PETITION NO.1 OF 2019 20 enmity or hatred between different classes of people on the ground of religion, caste or community. In order to bring an act within the definition of Section 123(3A) of the Act, the same should be graver than the offence punishable under Section 153A of the Indian Penal Code [See Ramesh Yeshwant Prabhoo (Dr) v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130]. The pleadings of the petitioner in paragraphs 6 to 16 of the election petition, do not, therefore, make out a cause of action for the petitioner for relief under proviso(a)(ii) of Section 123(2), Section 123(3) and Section 123(3A) of the Act and the said pleadings, in the circumstances, are liable to be struck down.
20. The essence of the pleadings in paragraph 17 of the election petition is that on 16.4.2019, the respondent and other active workers of UDF conducted house-to-house campaign at a place called Sakthikulangara representing to the voters that the petitioner, if elected, would ensure entry of women of all ages in Sabarimala temple and would eliminate all the customs and traditions among the believers. Likewise, the essence of the pleadings in paragraphs 18 to 21 of the election petition is that on 13.4.2019, in a meeting of UDF workers convened at the residence of one Kiran Raj, the election agent of the respondent Sri. Philip. K. Thomas, called upon the UDF workers to conduct house-to-house campaign pointing out that if the petitioner is elected, he would ensure women entry in Sabarimala temple and ELE. PETITION NO.1 OF 2019 21 that in furtherance to the said call, the UDF workers present at the said meeting has conducted house-to-house campaign on 14.4.2019 on the aforesaid basis. Here again, the case set out by the petitioner is that the aforesaid conduct of the election agent of the the respondent and the UDF workers would amount to corrupt practices defined in proviso(a)(ii) of Section 123(2), Section 123(3) and Section 123(3A) of the Act. I have found in the preceding paragraphs of this order that mere representation by the respondent and the persons supporting him that the petitioner, if elected, would ensure women entry in Sabarimala temple and would eliminate the customs and traditions of believers, even if made, would not amount to the aforesaid corrupt practices. In the circumstances, the pleadings of the petitioner in paragraphs 17 to 21 of the election petition are also liable to be struck down as the same do not make out a cause of action for the petitioner.
21. The essence of the pleadings in paragraphs 22 to 24 of the election petition is that on 15.4.2019, the respondent has made a statement to a journalist for telecast in Mathrubhumi news channel that LDF has formulated a scheme for securing votes by giving money and is taking necessary steps for the said purpose and the same has been telecast on the said day in the said channel continuously with the knowledge, consent and on the specific direction of the respondent. The essence of the pleadings in paragraphs 25 to 27 of the election ELE. PETITION NO.1 OF 2019 22 petition is that later on 21.4.2019, UDF workers, while conducting house-to-house campaign informed voters with the consent of the respondent that LDF workers would approach them with money for votes and they shall not accept money from them. According to the petitioner, the aforesaid conduct of the respondent and persons mentioned therein would amount to the corrupt practice defined in Section 123(4) of the Act. It is seen from the pleadings in the aforesaid paragraphs of the election petition that though the corrupt practice alleged in the aforesaid paragraphs is the corrupt practice defined in Section 123(4) of the Act, in terms of the pleadings in paragraphs 22 to 24, the corrupt practice is alleged to have been committed by the respondent, and in terms of the pleadings in paragraphs 25 to 27, the corrupt practice is alleged to have been committed by UDF workers with the consent of the respondent. As such, I propose to consider the question as to whether the pleadings in the aforesaid paragraphs would make out a cause of action for the petitioner separately.
22. The relevant portion of Section 123 of the Act covering sub section (4) reads thus:
"123. Corrupt practices.
The following shall be deemed to be corrupt practices for the purposes of this Act:--
xxxxxx xxxxxxxxxxx ELE. PETITION NO.1 OF 2019 23 (4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election."
Sub section (4) of Section 123 would get attracted if a candidate or any other person with the consent of the candidate, makes a publication of any statement of fact which is false in relation to the personal character or conduct of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election. The statement alleged to have been made by the respondent to the journalist as referred to in paragraph 23 of the election petition, as extracted therein reads thus;
"ആര പണങള വ ക ഹത യ നടതയട ഫലമ ല ന കണ മറച ല സ വധ നങല$ സ ബന ച ആരല ച കകയ ണ. ഫണ ലക ടത സമത ലക ടത രവ ട വ ങനതലന സ ബന ച ണ എര0 ൾ ഗ3 വമ യ ആരല ച ച ലക ണ കനത ഇരന ന ല$രയ അതല6 പകയ ആ ഭകലമന ണ എന ക ലഭച ടള റരപ ർടകൾ ലസററ ലചയ ന രയ ജകമണലതൽ ലസററ ലചയ കട ബങ$ൽ സമത എതച രവ ട ആണ. Cash for vote എന Scheme ഉണ ക അത ലചയ നള നനടപട ലക രല കഭ മണലതൽ പ ൻ ലചയ കകയ ണ. ഇത ക ങൾക Evidence ക ട നള സ ധ ത കറവ ണ. But it is a fact. വലയ രത തൽ ഫണ ലചയ ലക ണ election manipulate ലചയ ൻ ആരല ച കനത യട ണ നമക ക ടയ റര0 ർട."
As explicit from the extracted passage of the statement claimed to have been made by the respondent, there is absolutely no reference to the petitioner anywhere in the statement. Similarly there is nothing even to suggest any remote implication that the statement as extracted by the petitioner in the election petition refers to the ELE. PETITION NO.1 OF 2019 24 petitioner. In this circumstance, according to me, the said statement can never be understood as a statement made about the personal character or conduct of the petitioner to attract the corrupt practice defined in Section 123 (4) of the Act. The pleadings in paragraphs 22 to 24 are also therefore liable to be struck down.
23. Coming to the pleadings in paragraphs 25 to 27 of the election petition, the allegation is that the UDF workers, in the course of their house-to-house campaign, represented to the voters at two different places that the LDF workers would approach them with money for vote and they shall refuse to accept the same. If such a representation has been made by UDF workers falsely as alleged, it may be unethical. But I do not think that such conduct could be characterised as a corrupt practice defined in Section 123(4) of the Act. Be that as it may. Even assuming that the conduct aforesaid of the UDF workers referred to therein would amount to the corrupt practice defined in Section 123(4) of the Act, the petitioner is bound make out a case in the election petition that the same has been done with the consent of the respondent as pleaded. True, there are bald statements in the said paragraphs that the objectionable statements have been made with the consent of the returned candidate. Are those bald statements sufficient to satisfy the requirement of pleading intended in terms of Section 83(1)(b) of the Act, is the question. As ELE. PETITION NO.1 OF 2019 25 noted, in terms of Section 83(1)(b) of the Act, the petitioner is bound to set forth full particulars of the corrupt practice that he alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of commission of each such practice. The question as to how consent has to be pleaded in an election petition in the context of the corrupt practice alleged has been considered by this Court in Balan v. Manoharan Master, 1988 (1) KLT 717. In the said case, it was held by this Court, placing reliance on Azhar Hussain that consent of the candidate is a matter which has to be specifically alleged with the fullest details as to when the consent was given, to whom it was given, in what manner, in whose presence it was given etc., so that returned candidate whose election is challenged on that ground would get an effective opportunity of understanding the case and meeting the same. It was clarified in the said case that a bald omnibus statement will not serve the purpose of law. Paragraph 18 of the judgment in Balan reads thus :
Consent of the candidate or his election agent is a matter which has to be specifically alleged with the fullest details and proved. When the consent was given, to whom it was given, in what manner and in whose presence etc. are matters ie be alleged so that the returned candidate whose election is challenged on that ground could get an effective opportunity of understanding the case and meeting the same:
Dhortipakar v. Rajiv Gandhi reported in AIR 1987 SC. 1577, Azhar Jussain v. Rajiv Gandhi reported in 1986 (Supp.) S.C.C. 315 and a boast of earlier Supreme Court decisions have laid down the law like that. A bald ELE. PETITION NO.1 OF 2019 26 omnibus statement "in the presence and with the consent of the candidate or his election agent" will not serve the purpose of law. On the basis of such allegation alone the petitioner cannot be allowed at the stage of evidence to give further shape to his plea and let in evidence. On the basis of the present allegation what be can prove is only that when the speeches were made first respondent was present. Since details of cement were not given, proof cannot be had in that respect.
In the light of the decision aforesaid and also the decisions of the Apex Court referred to therein, it cannot be said that the bald and omnibus statements in the said paragraphs that false statements have been made by the LDF workers with the consent of the respondent would constitute sufficient pleadings as regards the alleged consent in terms of Section 100(1)(b) of the Act. The pleadings of the petitioner in paragraphs 25 to 27 of the election petition do not also therefore, make out a cause of action for relief for the petitioner under Section 123(4) of the Act and the said pleadings are also liable to be struck down.
24. The essence of the pleadings in paragraphs 28 and 29 of the election petition is that Sri K.Varadarajan, the Secretary of LDF Central Election Committee has given a complaint dated 9.4.2019 to the Chief Electoral Officer stating about the distribution of pamphlets containing the Sabarimala issue by the respondent at different parts of the Constituency. It is alleged in the said paragraphs that the Chief Electoral Officer has informed the petitioner by a communication dated 10.5.2019 that the District Electoral Officer has conducted an enquiry ELE. PETITION NO.1 OF 2019 27 into the complaint and warned the respondent for his action of distributing pamphlets containing the Sabarimala issue. It is also alleged in the said paragraphs of the election petition that by Annexure - III order, the District Electoral Officer found that the respondent has violated para 4.2.2 of the Model Code of Conduct by making appeals to the religious feelings of the electorers and also by criticising other political parties on the basis of unverified allegations. According to the petitioner, in so far as it was found by the District Electoral Officer that the petitioner has violated the Model Code of Conduct, his election is liable to declared void under Section 100(1)(d)
(iv) of the Act. The question to be examined therefore is as to whether the aforesaid pleadings would make out a cause of action for relief under Section 100(1)(d)(iv) of the Act.
25. I have read the pleadings in paragraphs 28 and 29 of the election petition as also Annexure - III order of the District Electoral Officer produced along with the election petition. As far as the allegation in the said paragraphs relating to the distribution of pamphlets containing the Sabarimala issue is concerned, the petitioner has neither produced the pamphlet alleged to have been distributed by the respondent nor the complaint stated to have been preferred by Sri.Varadarajan before the Chief Electoral Officer in this regard. The petitioner has also not produced the communication stated to have ELE. PETITION NO.1 OF 2019 28 been sent by the Chief Electoral Officer to the petitioner dated 10.5.2019. Further, there is no pleading in the election petition as to the objectionable statements alleged to have been made by the respondent in the pamphlets referred to in the said paragraphs nor there is any pleading in the election petition as to the basis for the District Electoral Officer to warn the respondent for the alleged conduct of the respondent. Again, there is no pleading in the election petition as to how the warning alleged to have been made by the District Electoral Officer would give rise a cause of action for relief under Section 100(1)(d)(iv) of the Act. According to me, the pleadings in the aforesaid paragraphs concerning the alleged distribution of pamphlets relating to Sabarimala issue and the warning alleged to have been made by the District Electoral Officer are vague and insufficient to make out a cause of action for relief under the aforesaid provision, for the same are hardly sufficient for the returned candidate to get an opportunity of understanding the case and meeting the same. Coming to the alleged violation of the Model Code of Conduct, even assuming that the finding rendered by the District Electoral Officer that the petitioner has violated para 4.4.2 of the Model Code of Conduct is correct, in so far as the petitioner is claiming relief under Section 100(1)(d)(iv) of the Act, it is obligatory for the petitioner to plead specifically in what manner the result of the election in so far as ELE. PETITION NO.1 OF 2019 29 it concerned the respondent was materially affected due to the said reason (See Ram Sukh v. Dinesh Aggarwal, (2009) 10 SCC 541). As noted, it is a case where the respondent has won the election by a margin of 1,48,856 votes over the petitioner and there is no pleading at all in the aforesaid paragraphs as to how the result of the election insofar as it concerns the respondent has been materially affected on account of the alleged violation of the Model Code of Conduct found in Annexure - III order. The pleadings in the said paragraphs as regards the alleged violation of the Model Code of Conduct also, in the circumstances, do not make out a cause of action for the relief claimed by the petitioner under Section 100(1)(d)(iv) of the Act and are liable to be struck down.
In so far as it is found that the pleadings in the election petition do not make out a cause of action, the election petition is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure and I do so.
SD/-
P.B.SURESH KUMAR, JUDGE.
tgs ELE. PETITION NO.1 OF 2019 30 APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE I A TRUE COPY OF THE COMPLAINT GIVEN BY
SRI.VARDAARAJAN,SECRETARY ,LDF CENTEL
ELECTION COMMITTTEE,KOLLAM,TO THE DISTRICT
MAGISTRATE KOLLAM.
ANNEXURE I(A) TRUE AND CORRECT ENGLISH TRANSLATION OF
ANNEXURE 1
ANNEXURE II TRUE COPY OF THE WRITTEN EXPLANATION OF THE
RESPONDENT DATED 13/04/2019 TO THE DISTRICT
ELECTION OFFICER,KOLLAM.
ANNEXURE II(A) TRUE AND CORRECT ENGLISH TRANSLATION OF
ANNEXURE II
ANNEXURE III A TRUE COPY OF THE ORDER NO.O3/AC/2019
DATED 14/04/2019 PASSED BY THE DISTRICT
ELECTION OFFICER AND DISTRICT
COLLECTOR,KOLLAM
ANNEXURE IV A TRUE COPY OF THE COMMUNICATION DATED
10.05.2019 GIVEN TO THE PETITIONER BY THE
CHIEF ELECTORAL OFFICER
ANNEXURE-IV(A) TRUE AND CORRECT ENGLISH TRANSLATION OF
ANNEXURE-IV
ANNEXURE V A TRUE COPY OF THE PETITION DATED
17.04.2019 SUBMITTED BY THE
SRI.X.EARNEST,SECRETARY,LDF,ERAVIPURAM
MANDALAM COMMITTEE TO THE DISTRICT ELECTION
OFFICER,KOLLAM.
ANNEXURE-V(A) TRUE AND CORRECT ENGLISH TRANSLATION OF
ANNEXURE-V
ANNEXURE VI THE COMPACT DISK CONTAINING THE FALSE
SETTLEMENT BROADCASTED IN MATHRUBHUMI NEWS
CHANNEL WITH THE INSCRIPTION "CASH FOR
VOTE"
ANNEXURE-VII ACKNOWLEDGMENT FOR RECEIPT OF MONEY DATED
05.07.2019 EVIDENCING THE DEPOSIT OF
RS.2000/-AS SECURITY BEFORE THIS HON'BLE
COURT.