C. S. KRISHNA IYER v. OFFICIAL LIQUIDATOR — 1985 DIGILAW 271 (KER)

Judgment :- 1. A petition under S.80, 81, 82, 83 and 100 read with S.117 of the Representation of the People Act (Central Act 43 of 1951) (hereinafter referred to as the Act) fora declaration that the election of the respondent from "No.II, Parliamentary Constituency" is void on the grounds of improper rejection of the petitioner's nomination as also of the corrupt practice, committed by the respondent. 2. The petitioner filed his nomination on 23-11-1984 before the Assistant Returning Officer (for short the A.R.O.). On 28-11-1984, the date fixed for scrutiny, the Returning Officer in the course of the scrutiny found that the petitioner had not made and subscribed to the oath or affirmation according to the form set out for the purpose in the IIIrd Schedule to the Constitution as provided for under Art.84(a) of the Constitution of India. The Returning Officer consequently rejected his nomination. 3. The petitioner submits that on the date fixed for scrutiny, that is, 28-11-1984 the Returning Officer ought to have permitted him to take the oath and inasmuch as he refused the permission, the rejection of the nomination is liable to be declared bad in law. 4. Yet another ground on which the petitioner rests his petition is the corrupt practice said to have been committed by the respondent. The facts pleaded in this regard, briefly stated, are: The Congress (I) party has caused the Government of Kerala to divert huge amounts from the exchequer for payment in the form of pension to 'Mukrees' and 'Mullas', persons holding religious offices in the Muslim community. This offer to pay pension on the eve of the election, was made with the avowed object of securing "the votes of Muslims in the State", the petitioner submits. He has also submitted that a large number of 'Mukrees' and 'Mullas' in No.II Ernakulam Parliamentary Constituency have received the payments also. In return, they not only voted for the respondent but also persuaded other Muslim voters to vote for the respondent. The aforesaid payment of pension to 'Mukrees' can be termed as "illegal gratification" for the purpose of securing Muslim votes and as such it amounts to 'corrupt practice' as defined in S.123(1) of the Act. 5. The respondent in his written statement has questioned the veracity of the pleadings, covering the above grounds. The aforesaid payment of pension to 'Mukrees' can be termed as "illegal gratification" for the purpose of securing Muslim votes and as such it amounts to 'corrupt practice' as defined in S.123(1) of the Act. 5. The respondent in his written statement has questioned the veracity of the pleadings, covering the above grounds. In the written statement, the respondent has stated that the petitioner had enough time to take the oath after he filed the nomination on 23-11-1984 and before 28-11-1984, the date fixed for scrutiny of the nominations. He could have taken the oath either before the A.R.O. or any other person authorised in that behalf by the Election Commission. The explanation given by the petitioner that the A.R.O. misled him, resulting in his not taking the oath in time, is baseless. He has no case that he had made any attempts to take the oath during the period between 23-11-1984 and 28-11-1984. The A.R.O. had sent to the home address of the petitioner (it is this address the petitioner had given in his nomination paper) Form 38 notice, informing him that he should take the oath before the date fixed for scrutiny. It is the bounden duty of a candidate for election to take the oath or affirmation before the date fixed for scrutiny. The respondent has denied the allegation in the petition that the Returning Officer and the A.R.O. committed any corrupt practice. The allegations in the petition that Congress (I) whose nominee the respondent is, has indulged in corrupt practice, in that the said party caused the Government of Kerala to divert huge amounts of public money for payment to 'Mukrees' and 'Mullas' as pension, are baseless. The decision to sanction the amounts for the social welfare activities, in fact rests upon the policy decision of the Government evidenced by the speech made by the Finance Minister in the Assembly while presenting the Budget. In fact, there was no payment of pension to anyone, the respondent submits. Whatever that be, the decision of the Government offering to pay pension to the aforesaid personnel in furtherance of the social relief measures, under no circumstance can be said to be a corrupt practice within the meaning of S.123(1) of the Act. In fact, there was no payment of pension to anyone, the respondent submits. Whatever that be, the decision of the Government offering to pay pension to the aforesaid personnel in furtherance of the social relief measures, under no circumstance can be said to be a corrupt practice within the meaning of S.123(1) of the Act. The notification of the Government offering the pension, the respondent submits, was not issued either at his instance or with his knowledge; nor was the same issued with the knowledge of his election agent. The notification did not in any way influence the electorate nor was it intended for the purpose. In any event, it was not intended to help the respondent. The respondent therefore submits that the election petition is liable to be dismissed with costs. 6. The Issues arising for consideration are: (1) Was the rejection of the nomination of the petitioner illegal? (2) Whether the declaration of the election of the respondent is liable to be held void on the ground that the respondent committed the corrupt practice, pleaded in the election petition? 7. Disposal of the 1st issue depends upon the interpretation of S.36(2) of the Act. S.36(2) reads: "36(1) (2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any. as he thinks necessary, reject any nomination on any of the following grounds: (a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely:- .... Articles 84,102, 173 and 191, ". 8. Art.84(a) of the Constitution of India reads: "A person shall not be qualified to be chosen to fill a seat in Parliament unless he (a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule." 9. The relevant part of Schedule III reads: "I, A.B., having been nominated as a candidate to fill a seat in the Council of States (or the House of the People) do swear in the name of God that I will bear true faith and solemnly affirm allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India." The cumulative effect of these provisions is that, before the date fixed for scrutiny under S.36(2)(a) a candidate should have made and subscribed the requisite oath or affirmation enjoined by Art.84 of the Constitution of India. Though it is not necessary that the oath should accompany the nomination paper, it is imperative that the oath or affirmation in the form set out for the purpose in the IIIrd Schedule to the Constitution must be made and subscribed before the date fixed by the election commission for scrutiny of nomination papers. In short, the oath aforesaid should be taken by a candidate before the date fixed for scrutiny of the nomination. It that be so, the candidate is not entitled to nor, for that matter, the Returning Officer is bound to entertain the request of a candidate that he should be permitted to take the oath on the date fixed for scrutiny of nomination even if the request was made before the actual scrutiny of the nomination papers. 10. I am fortified in this view by the decisions of the Supreme Court reported in Pashupati Nath v. Harihar Prasad, AIR 1968 SC 1064, Harjit Singh Mann v. S. Umrao Singh, AIR 1980 SC 701. 11. In the case on hand, it is common ground that the petitioner had not taken the oath or affirmation in the form set out for the purpose in the IIIrd Schedule to the Constitution. 12. Now turning to the facts of the case, it is not the case of the petitioner that he filed the oath or affirmation in the form set out for the purpose before the A.R.O. On the other hand, what he has pleaded is that the A. R. O. and the Returning Officer, with a view to help the respondent, prevented him from taking the oath before the scrutiny of the nomination. This plea is without any substance because the petitioner should have taken the oath or affirmation before any officer authorised in that behalf by the Election Commission, and produced the same before the date fixed for scrutiny. Here it is relevant to note that the only case, the petitioner pleaded and proved is that the A. R. O. did not assist him to take the oath. This argument however, cannot be countenanced because as seen from Ext. P3, Form No. 38, the A.R.O. had informed the petitioner that he should take the oath before the date fixed for scrutiny. The A R. O. had sent Ext. P3 to the petitioner in his house address (as shown in Ext. P4) by registered post acknowledgment due, on 24-11-1984. The petitioner (as P. W. 3) however, has deposed that he received the said notice sent in an envelope, only on the 28th at 2 P.M. He has stated thus in his evidence: "I already knew when I went to submit my nomination that I should take the oath before the day of scrutiny." To the question "Did you take any steps before the scrutiny day to take the oath?" the answer is "I have not taken any steps." He has further deposed: "In the nomination paper, I had given my house address only. It is that address that is seen on Ext. PI. I used to receive registered letters to my residential address. I have arranged to receive such letters in my absence in my residence. The cover containing M38 notice, I have not produced here. It can be ascertained from the cover the date on which the letter was re-directed from my residence to the office address. It can be seen from the cover that it relates to the election matter and that it was sent from the office of the Returning Officer." To the question "Had M38 been accepted at your residence, you would have received M38 form sufficiently early before the scrutiny date?" P. W. 3 (petitioner) has answered 'Yes'. Petitioner as P. W. 3 has admitted that he should have taken the oath before the scrutiny date. Nonetheless P. W. 3 at another stage of the evidence has stated that the A. R. O. made him believe that he had to take the oath only on 28-11-1984. Petitioner as P. W. 3 has admitted that he should have taken the oath before the scrutiny date. Nonetheless P. W. 3 at another stage of the evidence has stated that the A. R. O. made him believe that he had to take the oath only on 28-11-1984. The evidence read as a whole, shows that the petitioner was more anxious to establish that the A.R.O. was responsible for his not taking the oath in time. However, it has come out in evidence that the A. R. O. had sent the cover containing M38 Form to the petitioner on 24-11-1984 to the home address of the petitioner. If only he had produced the envelope, it could have been ascertained therefrom when the letter reached his house address. Ordinarily this cover containing Form 38 notice would have reached the petitioner in his home address, in any event, on the 26th November because (as seen from Ext. P2) it was sent on the 24th to his house address in Ernakulam itself. The reluctance of the petitioner to produce the envelope in evidence is proof enough to hold that the same had reached his home address sufficiently early enabling him to subscribe to the oath or affirmation before the date fixed for scrutiny, making his nomination a valid one The irresistable inference that can be formed in the circumstances is that the facts pleaded and the evidence adduced (P. Ws.1 to 6) to establish that the A.R O. misled him in regard to the taking of the oath, are the result of an after-thought. In his evidence P.W.2 (A.R.O.) has stated that he had advised the petitioner to obtain an oath form from his office and subscribe to the oath on 23-11-1984 itself. He further has deposed that he waited for the petitioner till 3 P.M. for that purpose; but he did not turn up. He therefore directed the concerned clerk to send Form 38 not only to the petitioner but to the other candidates who also had not subscribed to the oath. Accordingly the Form 38 notice was sent on 24-11-1984. Thus it can be seen that the allegations against the A.R.O. are baseless. P. W 5 has deposed that he had told the petitioner that the advice given by the A. R. O. that the oath need be taken only after the scrutiny, is not correct. Accordingly the Form 38 notice was sent on 24-11-1984. Thus it can be seen that the allegations against the A.R.O. are baseless. P. W 5 has deposed that he had told the petitioner that the advice given by the A. R. O. that the oath need be taken only after the scrutiny, is not correct. This advice was given on 23-11-1984. The petitioner therefore on 23-11-1984 itself had known that he should take the oath before the scrutiny of the nomination. In these circumstances, the argument of the petitioner that the A.R.O. misled him with regard to the requirement of taking oath before the day fixed for scrutiny, is liable to be rejected. I reject the same. I accordingly hold that the Returning Officer rightly rejected the nomination of the petitioner. 13. For the reasons stated above, this issue is found against the petitioner. 14. Issue 2. In an election petition, the petitioner should establish by evidence beyond reasonable doubt that the returned candidate committed the corrupt practice, defined under S.123 of the Act and hence the election is liable to declared void. (Vide D.P. Mishra v. K.N.Sharma, AIR 1970 S.C.1477). 15. Regarding this issue, the relevant facts discernible from the pleadings are: In No. II Ernakulam Parliamentary Constituency there are about 2 lakhs Muslim voters. In order to win the support of these voters "the Congress(I), whose nominee the respondent is, has caused the Government of Kerala to divert huge amounts from the exchequer 'for payment to 'Mukrees' and 'Mullas' who are persons holding religious offices in the Muslim community." This payment has been styled as pension. The petitioner submits that this payment had been made for securing the Muslim votes in the State. A large number of 'Mukrees' and 'Mullas' in the No. II Ernakulam Parliamentary Constituency received the payment." In return they not only voted for the respondent but also persuaded other Muslim voters to vote for the respondent. The Election Commission had called for an explanation from the Government as to why the pension was paid on the eve of the election. The explanation submitted by the Government, it is said, was not satisfactory. The pleadings conclude thus: "The aforesaid payment of mukree pension had been by way of illegal gratification for the purpose of securing votes. It amounts to corrupt practice as defined in S.123(1) of the Act." 16. The respondent has denied these allegations. The explanation submitted by the Government, it is said, was not satisfactory. The pleadings conclude thus: "The aforesaid payment of mukree pension had been by way of illegal gratification for the purpose of securing votes. It amounts to corrupt practice as defined in S.123(1) of the Act." 16. The respondent has denied these allegations. It has been stated in the written statement that "The decision to sanction amounts for the social welfare activities as stated above is of the Government in which different parties participate." The respondent has also denied the statement that a large number of 'Mukrees' and 'Mullas' in the constituency are the recipients of the pension. The respondent submits that so far as his information goes no such amount so far was disbursed to any one before the election. He has specifically denied the allegation that, "they not only voted for the respondent but also persuaded other voters to vote for the respondent". The respondent has further stated that the notification was not issued either at the instance of the respondent or with his knowledge. Nor for that matter the notification was issued with the knowledge of the respondent's election agent. In fact the notification is based on the statement contained in Para.50 of the Budget Speech of the Finance Minister delivered in the Assembly while presenting the Budget for 1984-85 (Vide Ext.P11 (a) ). This speech was delivered on 16-3-1984. If that be so, the respondent submits, the question whether the respondent committed any corrupt practice in the election, requires to be answered against the petitioner. The respondent accordingly submits that the petition is liable to be dismissed. Relevant parts of S.123 reads: "123. Corrupt practices. This speech was delivered on 16-3-1984. If that be so, the respondent submits, the question whether the respondent committed any corrupt practice in the election, requires to be answered against the petitioner. The respondent accordingly submits that the petition is liable to be dismissed. Relevant parts of S.123 reads: "123. Corrupt practices. The following shall be deemed to be corrupt practices for the purposes of this Act: (1) 'Bribery', that is to say, (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, directly or indirectly, of inducing (a) (b) an elector to vote or refrain from voting at an election, or as a reward to (i) (ii) " The conditions that should be satisfied, in order to attract the above provisions, are that the gift was made by the candidate or his agent or by any other person with the consent of the candidate or his election agent and that the gratification was made with the object directly or indirectly of inducing an elector to vote or refrain from voting at an election. There is thus an element of bargaining between the candidate and the voters. It therefore follows that in an election petition coming under S.100(1) (b), the petitioner should establish that the gift, offer or promise was made by the returned candidate himself or his agent or by any other person with his consent or his election agent. I am fortified in this view by the following decisions of the Supreme Court: Chasi v. Dal Singh, A.I.R. 1968 S.C.1191, Om Prabha v. Abnash Chand, A.I.R.1968 S.C.1083.Om Prakash v. Lalchand, A.I.R.1970 S.C.1889, and Har it Singh v. Umrao Singh, A.I.R.1980 S.C.701. 17. There is no evidence in this case that the notifications Exts. P9 and P10 offering payment of pension to 'Mukrees' and 'Mullas' were published by the Government at the instance of the respondent. On the other hand, what is seen is that the Government were obliged to issue the said notifications in view of its commitments discernible from Para.50 of Ext. P11 (a), the Budget Speech delivered by the Finance Minister in the House while presenting the Budget for 1984-85. On the other hand, what is seen is that the Government were obliged to issue the said notifications in view of its commitments discernible from Para.50 of Ext. P11 (a), the Budget Speech delivered by the Finance Minister in the House while presenting the Budget for 1984-85. Here it is also relevant to note that the State Government is a coalition Government and therefore it is too much to say that the Government have issued Exts.P9 and P10 notifications at the instance of a candidate belonging to one of the constituents of the coalition Government. The oral evidence tendered in the case also does not establish that the offer of the pension was made either by the respondent or his agent or his election agent or by any other person with the consent of the respondent or his election agent. On the other hand, the evidence shows that the Government offered to pay pension to Mukrees and Mullas. P.W.7 in his chief-examination has stated: "The candidate Shri. Thomas told me that the Government have given some benefits in the form of pension to 'Mullas' belonging to our community. Musaliar was called to my house. Sri Thomas told Musaliar also about this. Musaliar wanted me to go to the Mosque where a meeting was convened. When I went there Musaliar told me that I should vote for the candidate who is having this ssI, n as symbol. Accordingly I voted for the Congress candidate. Musaliar is available in the locality." The evidence tendered by this witness is not corroborated by any other evidence. According to him, the promise to give the benefit in the form of pension is to the Mullas. But it was Musaliar who was called to his house to enable the respondent to tell him about the pension, the Government would give to Mullas. The Musaliar is even now available. However, he has not been examined. He would have been the best witness. Why he was not examined, has not been explained by the petitioner. In his cross-examination P.W.7 has stated: "I do not know the name of Musaliar. But he is known as 'Mash' I cannot remember the date When Sri K.V. Thomas met me in connection with the election. I cannot definitely say whether I met him on a Tuesday or not. It appears that it was on a Tuesday... In his cross-examination P.W.7 has stated: "I do not know the name of Musaliar. But he is known as 'Mash' I cannot remember the date When Sri K.V. Thomas met me in connection with the election. I cannot definitely say whether I met him on a Tuesday or not. It appears that it was on a Tuesday... There was hardly any time for Thomas to talk with us. He left the place by saying that he has already spoken to the Musaliar and Mulla.. Musaliar called me to the Mosque, the next day of the visit of Sri Thomas in the locality. Musaliar did not tell me in my residence that I should vote for Congress. But he told me so only at the Mosque" It can thus be seen from this evidence that the Musaliar summoned the witness to the Mosque to tell him that he should vote for the Congress The witness has no case that the Musaliar in fact convened a meeting at the Mosque and at the said meeting exhorted the gathering that they should vote for the Congress because the Government have decided to give the Mullas and Musaliar benefits in the form of pension. 18. P.W.8 on the other hand has deposed that, "The Mukree told me that 1 shall not leave the mosque after prayers where others also. Mukree called all present and told us that Mukree pension has already been passed. You must exercise your franchise in favour of Thomas who belongs to the Ruling party if that has done, the Mukree pension will be passed easily " In the cross-examination he has stated: "Except Mukri, none of the other authorities had told me nothing else." 19. P.W.7 says that it was the Musaliar who told him that he should vote for the respondent whereas according to P.W.8 the Mukree convened a meeting and told the gathering that they should vote for the Congress. According to P.W.8, Mukree is "the lowest in the Mosque." His function according to him is cleaning as also announcing the prayer (Yank). According to P.W.7, Musaliar was present in the mosque and Musaliar admittedly is is more competent to take decision than Mukree. According to P.W.8, Mukree is "the lowest in the Mosque." His function according to him is cleaning as also announcing the prayer (Yank). According to P.W.7, Musaliar was present in the mosque and Musaliar admittedly is is more competent to take decision than Mukree. On a comparison of the evidence tendered by PWs.7 and 8, it can be seen that these witnesses have given contradictory versions of the petitioner's case of "corrupt practice committed by the respondent" which again is different from the version given by the witnesses. I therefore have no hesitation to reject the evidence tendered by P.Ws.7 and 8 as unbelievable. 20. It is by now well established that the evidence adduced in a petition where corrupt practice is pleaded, must clearly show that the gift, offer or promise was directly or indirectly made to the voter to vote or refrain from voting to a candidate. The proof required to establish corrupt practice must partake of the character of the proof necessary to establish a criminal charge. (Vide AIR 1968 SC 1191). If that be so, the petitioner has not established the allegations in the petition that the respondent committed corrupt practice within the meaning of S.123(1) (b) of the Act, in the election. This issue therefore is answered against the petitioner. In the result, the election petition is dismissed with costs. The Registrar shall immediately intimate the substance of the decision to the Election Commission and the Speaker of the Lok Sabha and shall thereafter send as soon as practicable an authenticated copy of this judgment to the Election Commission as required under S.103 of the Act. Dismissed.