Dismissed

K.C.Chandy v. K.M.Mani

Kerala HC5 Dec 2016El.Pet./1/2016

Case brief

AI extract

What is this about?

Election petition by a voter challenging the election from Pala constituency on the ground of corrupt practice of bribery, alleging payment of society dues to rubber growers on the eve of the poll at the instance of the returned candidate. The court dismissed the petition at the threshold, holding that no cause of action was disclosed and the affidavit did not disclose the source of information.

What the court decided

AI extract

K.C.Chandy Vs K.M.Mani — Election Law | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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MONDAY, THE 5TH DAY OF DECEMBER 2016/14TH AGRAHAYANA, 1938

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El.Pet..No. 1 of 2016 ()

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PETITIONER :

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K.C.CHANDY, S/O. K.M.CHANDY, AGED 67 YEARS, KIZHAKKAYIL HOUSE, PALA, PIN-686 575.

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BY ADVS.SRI.ASOK M.CHERIAN SRI.JOSEPH T.JOHN SRI.MANUEL KACHIRAMATTAM SRI.V.K.PRASAD SRI.K.SASIKUMAR

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RESPONDENT :

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K.M.MANI, S/O. MANI, AGED 83, KARINGOZHACKAL HOUSE, PALA P.O., PIN-686 575.

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BY SRI.S.SREEKUMAR,SENIOR ADVOCATE ADVS. SRI.SUJITH MATHEW JOSE SRI.CYRIAC KURIAN SRI.P.MARTIN JOSE SRI.GEORGE MECHERIL SRI.SUNIL CYRIAC SRI.VIJU ABRAHAM

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THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 14-11-2016, THE COURT ON 05-12-2016 DELIVERED THE FOLLOWING:

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EP.NO.1/2016

APPENDIX

PETITIONER'S ANNEXURES:

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ANNEX 1	TRUE COPY OF THE NOTICE DATED 16/02/2016 PUBLISHED AND DISTRIBUTED ON BEHALF OF THE JOINT ACTION COUNCIL BY ITS CHAIRMAN.
ANNEX 1 A	ENGLISH TRANSLATION OF ANNEXURE 1
ANNEX II	TRUE COPY OF THE HANDBILL DISTRIBUTED AMONG PUBLIC IN AND AROUND MELUKAVU, DATED 09/05/2016
ANNEX II A	ENGLISH TRANSLATION OF ANNEXURE II.
ANNEX III	TRUE COPY OF THE ADVERTISEMENT APPEARED ON 15/5/2016 IN ''MALAYALAMANORAMA'' DAILY.
ANNEX III A	ENGLISH TRANSLATION OF ANNEXURE III.
ANNEX IV	TRUE COPY OF THE ADVERTISEMENT APPEARED ON 15/5/2016 IN ''MATHRUBHUMI'' DAILY.
ANNEX IV A	ENGLISH TRANSLATION OF ANNEXURE IV.
ANNEX V	TRUE COPY OF THE ADVERTISEMENT APPEARED ON 15/5/2016 IN ''DEEPIKA'' DAILY
ANNEX V A	ENGLISH TRANSLATION OF ANNEXURE V.

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RESPONDENT'S ANNEXURES: NIL

/TRUE COPY/

P.A.TO JUDGE

sts

K.RAMAKRISHNAN, J. [C.R.]

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Election Petition No.1 of 2016

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Dated this the 5^th day of December, 2016

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JUDGMENT

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The above election petition was filed by a voter in 93 Pala constituency of Kerala Legislative Assembly, challenging the election of the respondent to the Legislative Assembly from that constituency under Sections 80, 80(a), 81, 83, 84, 100, 123 of Representation of Peoples Act.

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It is alleged in the petition that the petitioner is the voter in the above constituency and he was challenging the election of the respondent from the constituency held on 16.05.2016. The respondent was one of the candidate set up by Kerala Congress(M), which is a recongnised political party and a constituent of United Democratic Front to contest the election from Pala constituency. The election was held on 16.05.2016 and votes were counted on 19.05.2016 and on completion of the counting, the respondent was declared elected from that constituency under Section 66 of the Representation of Peoples Act (hereinafter called 'the Act'). He was elected with a margin of 4703 votes. Sri.Joy Abraham, Muzhavanoor House, Bharananganam P.O., who is member of Parliament of Rajyasabha is the State General Secretary of Kerala Congress (M) party, which set up the respondent as their candidate. It was he who

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Election Petition No.1 of 2016

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had issued the letter to the returning officer intimating that the respondent was the candidate set up by the party to contest the election. He is also the president of the director board of Meenachil Rubber Marketing and Processing Co-operative Society, No. K-118 having a head quarters at Pala (hereinafter referred to as 'MRM & PCS' in short). Prof.A.C.Jose, Adakkamundakkal house, Vellappad, Pala was the election agent of the respondent appointed under Section 40 of the Act. Sri.K.J.Philip, Kuzhikulam House, Valavoor P.O., Pala is the president of Pala constituency committee and the member of the State committee of Kerala Congress(M) Party. He was the convener of the election committee of the respondent and one among the main election campaigners for the respondent. He is the president of the Kottayam District Co-Operative Bank and also Valavoor Service Cooperative Bank, No.K-91 of Valavoor. Sri.M.M.Thomas, Melvattom House, Marangattupilly P.O., Pala is the president of Marangattupilly Service Co-operative Bank, No.K-3556 and MRM & PCS was established in the year 1962 and for the last 35 years all the members of its managing committee are persons having allegiance to Kerala Congress(M). Sri.Joy Abraham is the president of the above society since 2013. The area of operation of the above society is of Meenachil Taluk in Kottayam District. The whole Pala legislative constituency and

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major portion of Poonjar and Kaduthuruthy legislative assembly constituencies are in Meenachil Taluk.

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The society collects latex from small scale rubber growers in Meenachil Taluk by purchase methods. They also collect latex from various parts of Kerala through collection centres set up by the society and through rubber producers society. Almost all the rubber growers in the Meenachild Taluk is used to sell latex to the society, but they failed to pay amount to the rubber growers for the latex purchased from them since June 2014. The main source of income of the rubber growers in Meenachil Taluk is by sale of latex. Non-payment of the price of latex collected by the society from them scattered all over Meenachil Taluk led to the impoverishment of rubber growers affecting the economy in the taluk as a whole They formed an action council in June, 2015 under the leadership of Rev. Fr.Thomas Mannooranparambil, Chethimattom, Pala P.O., and Sri.Jose Sebastian, Vattakkavunkal House, Melukavumattom Post, is the president of Kurisukavala Janatha Rubber Producers Society No.K-90/89 Meluvattom to demand payment of price of latex sold to the society. When all the efforts of the action council failed to ensure the payment from the society, they declared that it would organise a sitting agitation of affected rubber growers in Pala town on Thiruvonam day of

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2015, that is 28.8.2015 terming the agitation as 'Pattinisamaram' and started campaigning for the agitation. Sri.Joy Abraham on behalf of the director board of the society negotiated with the leaders of the action council and on assurance given by him that the dues to those from whom purchases were made would be cleared before 28^th November, 2015, the agitation was withdrawn but no amount was paid as agreed.

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Meanwhile financial crises in Pala Marketing Co-operative Society No.4214 which is another society in Pala similar to MRM & PCS also brewed into an explosive situation and they also failed to make payment to the rubber growers, so the rubber growers who are entitled to get money from MRM & PCS and Pala Rubber Marketing Society formed joint council with Adv.K.C. Joseph, Kizhakkathil House, Meenachil P.O., as its chairman started public agitation demanding payment of the amount due to them. In spite of several representations made by the joint action council before the board of directors of the society and the president of the society, they did not care to pay the amount. They conducted various types of demonstrations dharnas etc., in front of the office of the society, the office of the Assistant Registrar of the Co-operative Societies, Pala. Representations were made to Chief Minister of Kerala, Minister Cooperations, then Finance Minister, the respondent who is also a

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member of the Pala constituency, then opposition leader of the Assembly and the Registrar of the Kerala Co-operative Societies. On 22.12.2015 the action council organised and conducted a day and night sitting dharna of the rubber growers of Meenachil Taluk named as 'Rappakalsamaram'. On 30^th January, 2016 the chairman of the joint action council went on a one day hunger strike, none of the office bearers in the society including Joy Abraham did care to take steps to mitigate the grievance of the rubber growers by paying the amount due to them. So they decided to intensify the campaign and organise public meetings and dharnas at various centres of Meenachil Taluk and also to intensify the agitation against the managing committee of the societies with support of the public at large. Notice was also published by the chairman of the action council evidenced by Annexure-I in Malayalam and in English evidenced by Annexure-1(a). As announced in the notice, they conducted meetings and dharnas in several places. The meetings were organised after publishing and distributing hand bill dated 09.05.2016 regarding the meeting to be held at Melukavu junction on the evening of 12.05.2016 evidenced by Annexure-2 and 2 (a).

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The respondent was minister in Kerala for 25 years in each ministries which ruled the State. He used to contest the election from

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that constituency and win with thumbing majority, but in the election held in April-May, 2011, though he was elected from the constituency with margin of only 5259 votes. So they apprehended that the agitation on non-payment of the amount by the society is likely to go against him and it is likely to lead to his defeat in the coming election. Emergency meeting of the board of directors of Valavoor Service Cooperative Bank of which Sri.K.J.Philip is the president and Marangattupilly Service Co-operative Bank of which Sri.M.M.Thomas is the president were convened at the instance of the respondent and the board of directors of both the bank resolved to sanction loans to the tune of Rs.50,00,000/- each to MRM & PCS. Although that society had committed default in repayment of the deposit and interest amounts due to various above mentioned banks to the tune of Rs.1 Crore to Valvoor Co-operative Society and Rs.2 Crores to Marangattupilly Cooperative Society, the loans were sanctioned without any security from the society, the society withdrew the amount from these banks in cash on 14.5.2015, though it was a holiday for the office of the society and the bank. The joint registrar Co-operative Societies, Kottayam has ordered an enquiry on 11.01.2016 under Section 65 of the Kerala Cooperative Societies Act on the working and financial condition of the society and it was knowing that such an enquiry was pending that, the

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above two service co-operative banks sanctioned loan to the society. On 15.05.2015 an advertisement appeared in Malayalamanorama, Mathrubhumi and Deepika having vide circulation in Pala constituency and it was in the form of a letter dated 14.05.2016 by Sri.Joy Abraham and m.N.Gopalakrishnapanicker who are the president and managing director respectively of the above society addressing rubber growers and intimating them that money due to them will be paid through the collection centres of the society in Mundupalam, Moonnani, Kizhathadiyoor, Karoor, Ezhacherry, Nechipuzhoor, Nariyanganam and payapra and that will be paid to their bank accounts. The notice ends with a call to the farmers and depositors not to be misguided. The publication so produced are Annexures-3, 3(a), 4, 4(a), 5, 5(a). The amounts due to the rubber growers were credited to their accounts on 14.05.2016 which was two days prior to the polling date and this was published on newspapers on 15.05.2016. No amount was paid to any rubber grower outside the Pala constituency to whom the society have to pay money by way of collecting latex till date.

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On 14.05.2016 and 15.05.2016, the respondent directly telephoned the rubber growers from Pala constituency to whom the money due to them was paid, whose names were scheduled in paragraph 18 of the petition, told them as they received the money

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from the society and they should vote for him in the election to be conducted on 16.05.2016 and they should also campaign for him among their relatives and friends. This was done as a gratification to influence the beneficiaries and this was done at the instance of Sri.Joy Abraham, K.J. Philip and M.M.Thomas as instructed by and with the consent of the respondent and that will amount to bribery as defined in Section 123(1) of Representation of Peoples Act, 1951 and thereby the respondent had committed corrupt practice and thereby his election is liable to be declared void under Section 100(1)(b) of Representation of Peoples Act, 1951. So the petitioner prayed to declare the election of the respondent from Pala legislative constituency held on 16.05.2016 and declared on 19.05.2016 void and set aside the election of the respondent on that ground.

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The respondent filed written statement contending as

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follows:

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The application is not maintainable. The allegation that the respondent committed corrupt practice under Section 123 of the Representation of Peoples Act defined under Section 123 (1)A of the Act is not correct. The allegation that there was some amount due from MRM & PCS Society to the rubber growers towards value of the latex purchased from them and the amounts were paid to them later as mentioned is correct but the allegation that it was done at the instance of the respondent and with the consent and connivance of the respondent by the above persons on the eve of the election etc, is not correct. It is also not correct that he had contacted the persons mentioned in paragraph 18 of the petition and told them that the amount due to them were paid and they should vote for him and they must also campaign

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for him among their friends and relatives etc., The allegations are not sufficient to bring home the corrupt practice as defined under Section 123(1)A, (b)(ii) of the Act. It must be made for the purpose of inducing an elector to vote in the election. So the necessary allegations to bring home the offence of corrupt practice as defined under section has not been made out in the petition. Respondent was not aware of the developments made at the instance of the president and managing director of the society to mobilise and to pay the amount etc. The material facts mentioned in the petition does not disclose any cause of action and as such the same has to be liable to be dismissed in limine in view of proviso to section 83 (1) of the Act. The proviso mandates that an affidavit as prescribed in Rule 94A of conduct of election Rules 1961 and in form 25 has to be filed along with the election petition and the affidavit now filed is not in conformity to Rule 94A. The affidavit does not disclose the essential requirements under the Act and Rules. It cannot be treated as an affidavit in the eye of law. Since there is no affidavit filed along with the election petition in compliance to Section 83 of the Act, which is mandatory in nature, then the election petition is not maintainable and it has to be rejected at the threshold.

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Section 83(1)(c) of the Act says that the election petition

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shall be verified in the manner laid down in the Code of Civil Procedure, 1908 for verification of the plaint. Order 6 Rule 15 deals with verification of pleadings, it mandates under Sub Rule 4 to have an affidavit accompanying the pleading and no such affidavit has been filed as contemplated under Order 6 Rule 15(4) of the Code of Civil Procedure. Further allegations mentioned in the petition are not correct. The allegations are not sufficient to bring a cause of action for maintaining the petition. There is no corrupt practice as alleged committed by the respondent or his election agent or any other person with his connivance or consent. The allegations against him are not

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correct and hence it is denied. As a minister and an elected member of the constituency he had received representations and he discussed the matter with the Chief Minister and attempted to solve the issues. Except that he had not done anything so as to project that as a corrupt practice. He was representing the constituency for more than 50 years and was a minister of Kerala holding different port folio for the last 25 years. The allegation that the loans were released by the service cooperative banks mentioned in the petition at the instance of the respondent etc., are not correct. He was not aware of any enquiry ordered under Section 65 of the Kerala Co-operative Societies Act on the working and financial condition of the society. If at all the board of directors of the society took steps to publish advertisements, that is within the administration of the society and the respondent has nothing to do with the same. The collection centres other than in Pala constituency is also mentioned in those publication. So the allegation that only those from Pala constituency alone were paid is not correct. Since the petition does not contain the necessary facts sufficient to make out a cause of action to maintain the application and the affidavit do not confirm the necessary requirements under the Act and Rules and not in conformity with form 25, the election petition is not maintainable and the same is liable to be dismissed. None of the

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reasons mentioned are sufficient to declare the election of the respondent void or set aside as claimed in the petition. He prayed for dismissal of the petition.

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On the basis of the pleadings, following issues were framed

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by this court:

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1. Whether the petition is maintainable?

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2. Whether the petition is liable to be dismissed for want of sufficient cause of action to maintain the petition?

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3. Whether the petition is liable to be dismissed for want of affidavit to be filed as contemplated under Order VI Rule 15 (4) of the Code of Civil Procedure read with Section 83 of Representation of Peoples Act?

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4. Whether respondent had made any illegal offer or gratification influencing the voters to cast their votes in favour of the first respondent?

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5. Whether the allegations mentioned in the petition will amount to corrupt practice as alleged in Sec.123(1)(A)(b)(ii) of the Representation of Peoples Act?

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6. Whether the election of the respondent is liable to be declared as null and void for the reasons stated in the petition?

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7. Reliefs and costs.

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Respondent filed I.A.7/2016 for hearing the maintainability

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of the petition as preliminary issue and also even according to the respondent the allegations in the petition are not sufficient to attract the corrupt practice mentioned under Section 123(1)A(b)(ii) of Representation of Peoples Act (hereinafter called 'the Act') and also

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the affidavit is not in conformity with the provisions and as such the petition itself is not maintainable. So that was considered as a preliminary issue and decided to hear the petition regarding the maintainability as preliminary issue along with other issues as to whether the allegations are sufficient to constitute a cause of action for maintainability of the petition as well.

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Heard Sri.Ashok M.Cherian, counsel appearing for the election petitioner and Sri.S.Sreekumar, senior counsel appearing for the respondent.

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The counsel for the petitioner submitted that the allegations in the petition have to be read as a whole and a reading of the petition will go to show that the necessary ingredients to attract the corrupt practice defined under Section 123(1)A(b)(ii) of the Act have been made out. It is not sufficient to read stray sentences here and there from the paragraphs for that purpose. It is not necessary to reiterate the ingredients mentioned in the section in the petition and what is required is only to provide the necessary material facts and particulars to ascertain as to whether such a corrupt practice has been made out and other things are matter for evidence. He had also submitted that the affidavit is also in conformity with the provisions.

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On the other hand, the senior counsel appearing for the

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respondent submitted that even assuming that the entire allegations are accepted, what is alleged is only that Sri.Abraham and Joy and Philip have made arrangements to pay of the amounts legally due to the rubber growers from the MSM & PCS society and even if any directions have been given by the respondent, that will not amount to corrupt practice or any gift or gratification made for the purpose of inducing the voters to vote or refrain from voting in a particular manner. He had also submitted that the affidavit did not contain the necessary particulars and also the source of information as required under the format and as such the petition is not in conformity with the provisions of the Representation of the Peoples Act and on that ground it is liable to be rejected. The learned senior counsel has relied on the decision reported in Noble Mathew v. Jose K.Mani and others (2014 KHC 138), Byju T.D. v. Thiruvanthoor Radhakrishnan (2007 KHC 3475) and Azhar Hussain v. Rejiv Gandhi (1986 (Supp) SCC 315) and Pookunhi Koya (Dr. P.) V. Muhammed Hamdulla Sayed (2010 KHC 6242) in support of his case.

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14. Issues 1 to 5:

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The election petition was filed by a voter in the Pala constituency challenging the election of the respondent to Kerala State Assembly from Pala constituency. The main allegation in the petition was that

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since long time the amounts due to the rubber growers who supplied latex to MSM & PCS society of which one Joy Abraham, is the president of that society was not paid and in the eve of the election namely between 14.5.2016 and 15.5.2016, he along with A.C.Jose and K.J.Philip who were the election agent and convener of the election committee of the respondent made all arrangements to get the amount from Marangattupilly Service Co-operative Bank of which one M.M.Thomas was the president and the society had advanced huge amount to the above society without any security knowing that it is under financial crises and enquiry has been ordered regarding the same under Section 65 of the Kerala Co-Operative Societies Act and the amounts were paid to the persons residing in Pala constituency alone with the consent and knowledge of the respondent who was the candidate and he had contacted the persons mentioned in para 18 of the petition and aked whether they have received the amount and asked for vote, thereby they have committed the corrupt practice under section 123(1)A(b)(ii) of the Act.

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15. Section 123(1)A defines bribery which reads as follows:

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123. Corrupt practices .- The following shall be deemed to be corrupt practice for the purpose of this Act:[(1)"Bribery", that is to say,-

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(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object,

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directly or indirectly of inducing-

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(a) a person to stand or not to stand as, or [to withdraw or not to withdraw] from being a candidate at an election, or

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(b) an elector to vote or refrain from voting at an election, or as a reward to -

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(i) a person for having so stood or not stood, or for [having withdrawn or not having withdrawn] his candidature; or

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(ii) an elector for having voted or refrained from voting;

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So in order to attract the corrupt practice under Section

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123 (1)A(b), it has to be alleged that any gift or offer or promise by the candidate or his agent or by any other person with the consent of the agent or his election agent of any gratification to any person whom so ever with the object directly or indirectly of inducing an elector to vote or refrain from voting at an election or as a reward to (i) a person for having so stood or not stood or for having withdrawn or not having withdrawn his candidature or (ii) an elector for having voted or refrained from voting. So it is clear from the above that the gratification must be offered or provided with an intention to induce an voter either to vote or not to a particular person. The entire reading of the petition will go to show that except stating that certain things have been done at the instance of the respondent, even if the entire allegations are accepted, there is nothing to indicate that these things were done for the purpose of inducing an voter directly or indirectly

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either to vote to the respondent or refrain from voting to any other person. Such an allegation is lacking in the petition which is required for attracting that section.

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In the decision reported in Dhartipakar Madan Lal

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Agarwal v. Rajiv Gandhi (1987 (Supp) SCC 93), it has been held

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that:

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“A combined reading of section 81, 83, 86 and 87 of the Act, it is apparent that those paragraphs of the petition which do not disclose any cause of action are liable to be struck off under Order 6 Rule 16 of the Code of Civil Procedure. Order 6 Rule 16 itself empowers the court to strikeout pleadings at any stage of the proceedings which may even before the filing of the written statement by respondent or commencement of the trial. If the court is satisfied that the election petition does not make out any cause of action and the trial could prejudice, emberass and delay of the proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objection to strike out the pleadings. If after striking out the pleadings, if the court finds that no triable issue remains to be considered, it has power to reject the election petition under Order 7 Rule 11. It is also held in the same decision that, by way of amendment of pleadings, new grounds cannot be allowed to be added after the expiry of the limitation period of 45 days for presenting the petition as prescribed under Section 81 of the Representation of Peoples Act”.

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18. In the decision reported in Ram Sukh v. Dinesh

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Aggarwal (2009) 10 SCC 541), it has been held that:

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“Provisions of Code of Civil Procedure apply for trial of election petition by virtue of section 87 and therefore in absence of anything to contrary in R.P. Act, court, trying the election petition, can act in exercise of its power under the Code of Civil Procedure including Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure Code, object being to abort meaningless litigation. Hence there is the need for said provision of C.P.C. to be applied with greater vigor in election matters where pendency of the election petition is likely to inhibit elected representative of

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the people in discharging his public duties. It is further held that, failure to comply with mandatory statutory provisions of non mentioning of the material facts and full particulars and even omission of single material fact will be enough to dismiss the election petition at threshold.”

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19. Further in the decision reported in Jagannath v.

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Jaswanth Singh (AIR 1954 SC 210), the Constitution bench of the

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apex court held that:

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“Statutory requirements of election law must be strictly observed and that the election contest is not an action at law or a suit in equity, but is purely a statutory proceedings unknown to common law and that the court possesses no common law power. It is also well settled that the success of the candidate who has won an election should not be lightly interfered with, any petition seeking such interference must strictly confirm to the requirements of the law, nevertheless it is also to be borne in mind that one of the essentials of the election law is to safeguard the purity of the election process and therefore court must jealously ensure that people do not get elected by flagrant breaches of that law or by indulging in corrupt practice as enumerated in the Act.”

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20. Section 81 and 83 of Representation of Peoples Act reads

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as follows:

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81. Presentation of petitions .- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in [sub-section (1)] of section 100 and section 101 to the [High Court] by any candidate at such election or any elector [within forty-five days from, but not earlier than the date of election of the returned candidates or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates].

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Explanation.- In this sub-section, 'elector' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.

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[****]

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[(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition

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[****], and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.]

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83. Contents of petition (1) An election petition. (a) shall contain a concise statement of the material facts on which the petitioner relies;

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(b) shall 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 practice, and

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(c)shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

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[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.]

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(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.]

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It Is clear from this that the election petition should set

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forth full particulars of any corrupt practice that the petitioner alleges including as full statement as possible of the names of parties alleged to have committed such corrupt practice and the date and place of commission of such corrupt practice. The proviso to that section says that, if the petitioner alleges any corrupt practice, then the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practice and the particulars thereof. So each and every particular leading to the corrupt practice has to be set forth not only in the petition, but also in the affidavit to be filed as contemplated under the section.

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22. In the decision reported in Laxmi Narayan Nayak v.

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Ramratan Chaturvedi and others (1990) 2 SCC 173), it has been held that:

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“The pleadings of the election petitioner in his election petition should be absolutely precise and clear containing all necessary details and particulars as required by law. The allegations in the election petition should not be vague or general in nature or lack of materials are be frivolous or vexatious because the court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue. Evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made have been committed rendering the election void under Section 100. The evidence produced before the court in support of the pleadings must be clear, cogent satisfactory, credible and positive and also should stand the test of strict and scrupless scrutiny to accept oral evidence at its face value without looking for assurance of some surer circumstances or unimpeachable documents. The onus of proof of allegations made in the election petition is undoubtedly on the person who assails the election.”

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23. Further in the same decision it has been held that:

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“An election petition where corrupt practices are imputed must be regarded as a proceedings of a quasi criminal nature where strict proof is necessary. Since the charge of corrupt practice, the consequence of which is not only render the election of a retained candidate void, but in some cases to impose upon him a disqualification, must be proved on appraisal of the evidence adduced by both parties particularly by the election petitioner who assails the election of the returned candidate. In the case of proving the bribery and gratification which must be held that, the allegation that promise was made by the return candidate in his speech in a public meeting that he would present a silver shield to the electors of that polling booth which would record maximum number of votes in his favour in the absence of consistent and satisfactory evidence held that the election petitioner failed to discharge the onus of proving rest on him.

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24. Further in the same decision the Supreme Court has

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analysed all the decisions and the principles as to the nature of pleadings in election cases in paragraph 5 of the judgment which reads as follows:-

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“5. This court, is a catena of decisions has laid down the principles as to the nature of pleadings in election cases, the sum and substances of which being:

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(1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law vide [Dhartipakar Madan Lal Agarwal V. Rajiv Gandhi (1987 Supp SCC 93)] and [Kona Prabhakara Rao V. M.Seshagiri Rao (1982) 1 SCC 442).

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(2) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexations because the court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from vices as not raising any triable issue vide [Manphul Singh V Surinder Singh (1973) 2 SCC 599 : 1974) 1 SCR 52, [Kona Prabhakara Rao V.M.Seshagiri Rao (1982) 1 SCC 442)] and Dartipakar Madan Lal Agarwal V Rajiv Gandhi (1987 Supp SCC 93)].

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(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100 vide [ Jumuna Prasad Mukhariya V. Lachhi Ram (1955) 1 SCR 608 : AIR 1954 SC 686)] [Rahim Khan V Khurshid Ahmed (1974) 2 SCC 660)].

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(4) The evidence produced before the court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny vide Ram Sharan Yadav V Thakur Muneshwar Nath Si [ngh(1984) 4 SCC 649)].

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(5) It is unsafe in an election case to accept oral evidence at its face value without looking for assurances for some surer circumstances or unimpeachable documents vide [ Rahim Khan V Khurshid Ahmed (1974) 2 SCC 660], [M.Narayana Rao V G.Venkata Reddy (1977) 1 SCC 771 : (1977) 1 SCR 490)], [Lakshmi Raman Acharya V Chandan Singh (1977) 1 SCC 423 : (1977) 2 SCR 412)] [Ramji Prasad Singh V Ram Bilas Jha]

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(6) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded vide [ Rahim Khan V Khurshid Ahmed (1974) 2 SCC 660], [Mohan Singh V Bhanwarlal (1964) 5 SCR 12 :

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AIR 1964 SC 1366)] and Ramji Prasad Singh V Ram Bilas JHa (1977) 1 SCC 260)]”.

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25. In the decision reported in Harjit Singh Mann V S.Umrao

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Singh and Others (1980) 1 SCC 713, it has been held that:-

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“in order to attract the offence under section 123 of the Act, it was necessary for the purpose of proving the corrupt practice of bribery to establish that there was an element of bargaining in what the respondent was alleged to have done for Bara Pind and Littran. Reference in this connection may be made to the decision of this Court in [Ghasi Ram V. Dal Singh (AIR 1968 SC 1191)] where it was held with reference to the decision in [Amirchand V.Surendra Lal Jha 10 ELR 57)] that if a minister redresses the grievances of a class of the public or people of a locality or renders them any help, on the eve of an election, it is not a corrupt practice unless he obtains promises from the voters in return, as a condition for his help”.

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26. It was also held that:-

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“the evidence must show clearly that the promises or gift directly or indirectly was made to an elector to vote or refrain from voting at an election and if there was good evidence that the minister bargained directly or indirectly with voters the result might have been different. The decision in Ghasi Ram case was followed in [Om Prabha Jain Vs. Abnash Chand (AIR 1968 SC 1083)], [Bhanu Kumar Shastri V. Mohan Lal Sukhadia (1971) 1 SCC 370)] and Chaitanya Kumar Adatiya V.Smt.Sushila Dixil (1976) 3 SCC 97)] . So it is necessary for the appellant to plead and prove that there was bargaining between the respondent and the voters and he did what he is alleged to have done in Bara Pind and Littran for that reason but as the trial court has pointed out, there was no such allegation in the election petition. So when the element of bargain was completely absent from the allegation against the respondent, the trial court was justified in holding that the alleged corrupt practice had not been established”.

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27. In the decision reported in [ S.Iqbal Singh V. S.Gurdas

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Singh and Others (1976) 3 SCC 284] , it has been held that:

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“the giving of any gratification with the object of inducing the

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receiver or any other person to vote is an offence while acceptance of gratification by a person either for himself or for any other person or for inducing any other person to vote is an offence. In other words giving is an offence if paid to the voter or such giving induces another person to vote. It is not giving a gratification or that he may induce another person to vote that an offence whereas receipt of a gratification in order to induce another person to vote is an offence. The reason for the distinction between the provision in Section 123 (1) (A) and 123(1) (B) seems to be this: In the former case a person standing for election has necessarily to have a number of people to work for him and he may have to bear their expenses. That by itself should not be deemed to be bribery. In the latter case when a person takes money offering to induce people, of course, induce by wrong means, to vote for the person who pays him the money he is really poking his nose into something which is no business of his and that practice should be discontinued. A bargain for the purposes of this section does not mean that the candidate or his agent makes an offer and the voter accepts it in the sense that he promises to vote. It is enough if the candidate or his agent makes the gift or promise on that condition. If a candidate or his agent pays money to a voter saying that he wants him to vote, it is a bargain for the purposes of this section. It is not necessary that the voter should say that he would vote and thereafter the candidate or his agent should pay the money. Even in such a case the voter after receiving the money might or might not vote. The promise to grant gun licences would really amount to a redressal of the grievances of a class of the public or rendering them any help. On facts there is no evidence here of obtaining a promise from the voters in return. Hence there was neither gratification nor any bargaining for votes involved”.

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28. In the decision reported in [ Ravinder Singh V Janmeja

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Singh and others (2000) 8 SCC 191], it has been held that:

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“Section 83 of the Act is mandatory in character and requires not only a concise statement of material facts and full particulars of the alleged corrupt practice, so as to present a full and complete picture of the action to be detailed in the election petition but under the proviso to Section 83(1) of the Act, the election petition levelling a charge of corrupt practice is required, by law, to be supported by an affidavit in which the election petitioner is obliged to disclose his source of information in respect of the commission of that corrupt practice. The reason for this insistence is obvious. It is necessary for an election petitioner to make such a charge with full responsibility and to

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prevent any fishing and roving inquiry and save the returned candidate from being taken by surprise. In the absence of proper affidavit, in the prescribed form, filed in support of the corrupt practice of bribery, the allegation pertaining thereto, could not be put to trial the defect being of a fatal nature”.

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29. In the decision reported in [K.M.Mani V. P.J.Antony and

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others (1979) 2 SCC 221], it has been held that:

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“when corrupt practice alleged in the petition the substance of the allegation alone material. The mere fact that the allegation regarding addressing the meeting and exhorting the audience is contained in a separate sentence, will not justify the argument that the allegation in paragraph 5 was confined to convening the meeting and not to addressing it. The proper way to examine a controversy like this is to consider the substance of the allegation and not its mere form. It may be that a part of the allegation may be made in a separate sentence or sentences, and it may also be that it may appear to be disjointed from the earlier allegation because of inartistic drafting, but it is the substance of the allegation which is material and not its mere form. It is equally necessary that the allegation should be read as a whole and construed properly so as to understand its true nature and content”.

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30. In the decision reported in [Pookunhi Koya (Dr.P) V

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Muhammed Hamdullah Sayed (2010 KHC 6242)], it has been

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held that:

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“unless there is pleading that it was by way of gratification with the intention of inducing the voters to vote for the returned candidate, there is no complete cause of action. There is no pleading that 1^st respondent offered gratification to any voter with the intention of inducing the voter to vote for him. There is no averment that any person with the consent of the first respondent or his election agent offered any gratification with the intention of inducing any voter to vote for him. There is no averment that those who received payment were voters and that they were paid money either by the 1^st respondent or by any person with the consent of the 1^st respondent or his election agent with the intention of inducing those who received money to vote for the 1^st respondent. There is no averment as to who distributed the money through constable of India reserve Battalian Distribution of money by itself is not a corrupt

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practice without any allegation that it was by way of gratification with the intention of inducing the voters to vote for the 1^st respondent. No charge is made out. Material facts are therefore lacking. The averments are vague and unbelievable also”.

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It is clear from the above decisions, that mere promise of doing certain general thing to the people of the locality by a Minister or any other person will not amount to gratification as defined in the Section. There must be a bargain between the voter and candidate or his election agent or any other person with his consent that such promise will be fulfilled if the elector votes for him or refrain from voting to any other person. Any action taken in the capacity of Minister or Member of Legislative Assembly to redress of the common grievance of the persons in the constituency will not amount to bribery or gratification unless it is coupled with a bargain for voting.

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In the decision reported in [Byju T.D V Thiruvanchoor

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Radhakrishnan 2007 KHC 3475] , it has been held that:

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“if the source of information is not mentioned in the affidavit under Rule 94A, that the presumption is that the petitioner has no personal knowledge about the corrupt practice. So much so there is no proper verification of the election petition and affidavit under Rule 94A of Conduct of Election Rules, disclosing the source of information regarding the corrupt practice and the attendant allegation about which the petitioner has pleaded only on the basis of information and not personal knowledge”.

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33. It is further held in the same decision that:

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“if an election petition filed and the source of information is not disclosed about the corrupt practice and the allegation concerned, then it does not give rise to any cause of action”.

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Section 94A of conduct of Election Rules 1961 reads as follows:

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Rule 94A . Form of affidavit to be filed with election petition.- The affidavit referred to in the proviso to sub-section (1) of section 83 shall be sworn before a magistrate of the first class or a notary or a commissioner of oaths and shall be in Form 25.

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The form required to be filed along with the petition as required Rule 94A is extracted below.

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Form 25 (See rule 25A)

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AFFIDAVIT

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I,........the petitioner in the accompanying election petition calling in question the election of Shri/Shrimati...............(respondent No................) in the said petition) make solemn affirmation/oath and say-

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(a) that the statements made in paragraphs ............of the accompanying election petition about the commission of the corrupt practice of ....................and the particulars of such corrupt practice mentioned in paragraphs.................of the same petition and in paragraph...................of the Schedule annexed thereto are true to my knowledge.

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(b) that the statements made in paragraphs....of the said

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petition about the commission of the corrupt practice of..... and the particulars of such corrupt practice given in paragraph.............of the said petition and in paragraphs...........of the Schedule annexed thereto are true to my information.

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(c )

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(d) etc.

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Signature of deponent

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Solemnly affirmed/sworn by Shri.Shrimati.......at....this...day of......20.......

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Before me, Magistrate of the first class/Notary/Commissioenr of Oaths)

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Form 25 of the said Rules gives the format of the affidavit

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to be filed under this Rule which is contemplated to be filed as per the proviso to Section 83 (1) of the Representation of the People Act. It is clear from the above that the affidavit must contain not only the particulars and material facts constituting the allegations of corrupt practice, but also the source of information which the petitioner got so

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as to enable the other party to know about the contents of the same. It is also clear from the decisions cited (supra) that if the source of information is not disclosed in the affidavit, then it cannot be said that he has got personal knowledge about the allegations, but only hearsay knowledge and that is not sufficient for holding that the affidavit is in conformity with the mandatory provisions of the Act and no cause of action required to proceed with the case with a triable issue has been made out and under such circumstances if the affidavit is not in conformity with the rule and the form disclosing the source of information, then it cannot be treated to be an affidavit filed in compliance of the mandatory provisions of the Act and Rules and the election petition is liable to be rejected.

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In this case the affidavit filed by the petitioner along with the election petition reads as follows:

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AFFIDAVIT

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I, K.C.Chandy, son of K.M.Chandy, aged 67 years, residing at Kizhakkayil House, Pala, Kottayam District, Pin:686575 the petitioner in the accompanying Election Petition calling in question the election of Mr.K.M. Mani (respondent in the said petition) from 93 Pala Constituency to the Kerala Legislative Assembly do hereby make solemn affirmation and say-

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(a) that the statements made in paragraphs 20, 21 and 22 of the accompanying election petition about the commission of the corrupt practice of Bribery and the particulars of such corrupt practice mentioned in paragraphs 1 to 12, 14 to 17 and 19 and Annexure I in paragraph 10, Annexure II in Paragraph 11 and Annexures III to V in Paragraph 16 of the same petition are true to my knowledge.

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(b) that the statements made in the said petition about the particulars of such corrupt practice of Bribe given in paragraphs 13 and 18 of the said petitioner true to my information.

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All the facts are true and correct

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Datd this the 29^th day of June 2016.

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K.C.Chandy Deponent

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Solemnly affirmed by Mr.K.C Chandy, son of K.M.Chandy, aged 67 at ernakulam on this the 29^th day of June 2016.

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Neither in the petition nor in the affidavit the source of information of the corrupt practice alleged to have been committed by the respondent has been disclosed. So in the absence of such disclosure, it cannot be said that the affidavit filed is in conformity with the mandatory provisions of Section 83 and necessary cause of action to proceed with the trial of the case has been made out and it is liable to be rejected. So on that ground, the petition is not maintainable and

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the same can be dismissed at the threshold itself as the mandatory provisions have not been complied with and there is no cause of action

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made out to proceed with the case.

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Even as regards the allegation of corrupt practice also except stating that the persons mentioned in the petition have made arrangements to pay the amount by taking advance from some other society and it was done with the consent and conveyance of the respondent, even going by the allegations, it can be only inferred that in the position of the Member of the Legislative Assembly and as the Minister, he had intervened in the matter and advised the office bearers of the society to discharge the amount to the rubber growers, the legally entitled amount. There is no allegation that the amount was paid by the society to any other person other than persons who are not legally entitled to get it. It can not said to be a gratification to advise the society to pay the legally due amount to the rubber growers and the payment of legally entitled amount to some person by the arranging source can not be said to be gratification as well. There is no allegation in the petition that it was made with an intention to induce the voter either to vote or refrain from voting as provided under section 123 (1) (A) (b) (ii) of the Act. So even if the entire allegations are accepted in toto, then also it cannot be said that it will amount to gratification made by the respondent either directly or indirectly either by himself or through his election agent or any other

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person with him consent for the purpose of inducing a voter from voting or refrain from voting in the election to a particular person. Further the allegations do not say that only if he votes, the amount will be paid to him. Then only it will amount to bargain. No such bargain has been made out in the petition. So under circumstances, even if the entire allegations are accepted, the offence of corrupt practice has not been made out so as to proceed with the trial of the case as there is no triable issue arises for consideration on the basis of the materials available on record. So on that ground also the petition lacks necessary cause of action to proceed with the case and the petition is liable to be rejected as at the threshhold itself. The points are answered accordingly in favour of the respondent against the petitioner.

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Issue No.6: In view of the finding on issue Nos.1 to 5 this point does not arise for consideration as the petitioner is not entitled to get the election of the respondent declared null and void. The point is answered in favour of the respondent against the petitioner.

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Issue No.7: In view of the discussions made above and also in view of the findings on the above issues namely., 1 to 6, the petitioner is not entitled to get the relief claimed and the petition is liable to be dismissed.

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In the result, the petition fails and the same is hereby dismissed. This court does not find any reason to disallow cost of the petition to the respondent. So the petition is dismissed with cost to the respondent. Registry is directed to communicate this judgment to the Chief Election Commissioner and other election authorities as required under the provisions of the Representation of the People Act and Rules immediately.

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Sd/- K.RAMAKRISHNAN, JUDGE

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//True Copy//

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P.A. to Judge

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ss & R.AV

K.C.Chandy v. K.M.Mani

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K.C.Chandy v. K.M.Mani

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