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2001 DIGILAW 416 (KER)

Sugunan v. Shanmughadas

2001-08-02

M.R.HARIHARAN NAIR

body2001
Judgment :- M.R. Hariharan Nair, J. 1. Heard for admission and on the aspect of maintainability. 2. The petitioner who was voter No. 518 in Polling Station No. 71 in Ballussery Assembly Constituency (Constituency No.22) challenges the election of the 1st respondent - A.C. Shanmughadas as a Member of the Kerala Legislative Assembly in the election that took place on 10.5.2001, the result of which was declared on 13.5.2001. It is alleged that the 1st respondent who had been a Member representing the very same Constituency for more than 25 years exerted undue influence resulting in corrupt practice in the matter of election. 3. The allegations in the petition can be summarised as follows: After the Notification for elections to the Kerala Legislative Assembly was published by the Election Commission of India on 28.3.2001 and after the decision was taken by the 1st respondent to contest the elections from the Ballussery Assembly Constituency as a candidate of the Nationalist Congress Party which was a constituent of the Left Democratic Front- the first respondent realised that the failure to complete the Ballussery Kurumpoil - Vayalada - Thalayada road would adversely affect his prospects of success in the election. He noticed that the Pourasamithi (citizens forum constituted in the Constituency) was displeased by the noncompletion of the aforesaid road and had decided to boycott the election unless the road was opened for vehicular traffic. 4. The decision of the Forum to the above effect taken in the third week of March, 2001 appeared in the newspapers, one of which is produced as Annexure-A. Another news item to this effect which appeared in the Deepika Daily is produced as Annexure B. The boycott would have resulted in about 4000 votes being not polled. The area concerned was Vayalad within the Panangad Grama Panchayat which was believed to be a strong hold of the L.D.F. The 1st respondent therefore made frantic efforts to ensure that the construction of the said road which came within the 'MLA Road Scheme' was somehow completed, and decided to exert undue influence on the voters by ensuring the construction of the road. Misusing his privileged position as M.L.A. of the Constituency the 1st respondent and his Chief Election Agent - one Unnikrishnan exerted pressure on the Superintending Engineer, PWD, North Circle, Kozhikode by name Sureshan Koyilerian and compelled him to transfer the work relating to the said road to the Roads Sub Division, Kozhikode with immediate effect. 5. Previously, the work was under the control of the Assistant Executive Engineer, PWD, Roads Sub Division, Koyilandi which post at the time was held by one T.V. Vasumithran. In consequence of personal pressure exerted by the 1st respondent and his Chief Election Agent the work was transferred to the Roads Sub Division, Kozhikode, as per an order produced as Annexure-C on 6.4.2001. The said order was passed after the 1st respondent had declared his candidature to the Constituency. The transfer of the work which had commenced as early as 1982 through Annexure-C order was unprecedented, illegal and against the normal procedure. The work of the road was handed over on 18.4.2001 and it commenced all of a sudden, i.e., on 19.4.2001 itself. 6. At the instance of the 1st respondent, the Pourasamithy met again on 30.4.2001 and decided to lift the boycott announced earlier. After the declaration of the results, the work was stopped. The performance of the work in the meantime was deliberately intended to exert undue influence directly or indirectly on the voters or at any rate it was an attempt to interfere with the free exercise of the electoral right. In consequence of the commencement of the work in an illegal manner those who had earlier decided not to vote not only decided to end the boycott, but also appear to have voted in favour of the 1st respondent. 7. On 7.5.2001 i.e., three days before the polling, the 1st respondent and the activists of the L.D.F. conducted a 'Jaithra Yathra' (procession of success) for completion of the commencement of the work relating to the road and claimed that he was responsible for the commencement of the work. 7. On 7.5.2001 i.e., three days before the polling, the 1st respondent and the activists of the L.D.F. conducted a 'Jaithra Yathra' (procession of success) for completion of the commencement of the work relating to the road and claimed that he was responsible for the commencement of the work. A news item in this regard that appeared in the Deshabhimani daily dated 7.5.2001 is produced as Annexure-D. Since the road concerned was an MLA Road initiated by the 1st respondent in 1982 every step regarding the improvement of the road, its work, etc., were within the knowledge of the 1st respondent and he was being informed by the concerned officials about the work. The transfer of the work from Koyilandi division to Kozhikode division and its hurried execution were matters fully within the knowledge of the 1st respondent who was subsequently returned elected. But for the votes obtained in consequence of the corrupt practices mentioned above, the 1st respondent would not have won the election and instead success would have gone to the 2nd respondent. The prayer therefore is to set aside the election of the 1st respondent and to declare the 2nd respondent as the successful candidate duly elected from the Ballussery Constituency to the Kerala Legislative Assembly on the ground of exercise of corrupt practice. 8. Under S.100(1)(b) of the Representation of the People Act, if any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of returned candidate or his election agent, the election of such returned candidate can be declared as void. Under S.123(2) of the Act'undue influence' would be a corrupt practice; but then what is undue influence? The term is dealt with in S.123(2) of the Act as follows: "123(2). Under S.123(2) of the Act'undue influence' would be a corrupt practice; but then what is undue influence? The term is dealt with in S.123(2) of the Act as follows: "123(2). Undue influence, that is to say, any direct or indirect 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 is 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; or (b) a declaration of public policy, or a promise of public action, 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." It is clear from S.123(2)(b) aforementioned that a declaration of public policy or a promise of public action or the mere exercise of a legal right without intent to interfere with an electoral right cannot be deemed to be 'undue influence' within the meaning of S.123. Even if the expedition of the works were arranged by the petitioner, would it stand in the way of the voters casting their votes in favour of the rival candidate? By resumption of the work can it be said that the 1st respondent has caused interference with the free choice of a candidate even if by such resumption of work he persuaded the voters from withdrawing their decision to boycott? Does his action, in any way, amount to an undue influence or a corrupt practice? 9. I shall refer to certain decisions which were placed before me by the learned counsel for the petitioner in support of his contentions. Baburao Patel & Ors. Does his action, in any way, amount to an undue influence or a corrupt practice? 9. I shall refer to certain decisions which were placed before me by the learned counsel for the petitioner in support of his contentions. Baburao Patel & Ors. v. Dr. Zakir Hussain & Ors. (AIR 1968 SC 904) went into the scope of undue influence forming part of corrupt practice envisaged in the Act. It was found that S.123(2) of the Act is more or less in the same language as S.171-C of the IPC except that the words "direct or indirect" have been added to indicate the nature of interference and that the definition of "undue influence" in the Representation of the People Act is thus slightly wider. It was, however, found that it is open to the Ministers to canvass for candidates and such canvassing will not amount to undue influence. It was also held that in fact it is a Minister's right to ask the public to support candidates belonging to the Minister's party; but if he abuses his position and goes beyond, the question of undue influence may arise. 10. Shiv Kirpal Singh v. V.V. Giri (AIR 1970 SC 2097) also dealt with the scope of the aforesaid provision. The majority of judges held in that case that there can be undue influence even at the stage when the elector goes through the mental process of weighing the merits and demerits of the candidates and makes his choice. What was in question there was a pamphlet which described a candidate as a 'debauch without any sense of shame or morality' and asked the electors whether the name of the Congress be lowered to such depths that such moral leper, such depraved man should be set up as the Congress candidate for the highest post of President of India and that if such candidate became President he would turn the Rashtrapati Bhavan into a harem, a centre of vice and immorality. It was held that if the distribution of the pamphlet by post to electors or in the Central Hall of the Parliament as alleged is proved, it would constitute 'undue influence'. It was held that it is the degree of gravity of the allegation which would determine the factor in declaring whether it falls under S.171-C of the IPC. 11. Ram Sharan Yadav v. Thakur Mu Nath Singh & Ors. It was held that it is the degree of gravity of the allegation which would determine the factor in declaring whether it falls under S.171-C of the IPC. 11. Ram Sharan Yadav v. Thakur Mu Nath Singh & Ors. (AIR 1985 SC 24) also dealt with the aspect of corrupt practice in the form of undue influence. It was held that there is no ritualistic formula nor a cut¬and-dry test to lay down as to how a charge of undue influence can be proved; but if all the circumstances taken together lead to the irresistible inference that the voters were pressurised, threatened or assaulted at the instance of either the candidate or his supporters or agents with his consent or with his agents' consent, that should be sufficient to bring it under corrupt practice and vitiate the election of the returned candidate. It was also held that in all cases where allegations of fraud or undue influence are made, while insisting on standard of strict proof, the court should not extend or stretch the doctrine to such an extreme extent as to make it well-nigh impossible to prove an allegation of corrupt practice because such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process. The Court in such cases should be guided by the following considerations: "1. The nature, character, respectability and credibility of the evidence. 2. The surrounding circumstances and the improbabilities appearing in the case. 3. The totality of the effect of the entire evidence which leaves a lasting impression regarding the corrupt practice alleged". 12. I shall now refer to some decisions not cited by the petitioner. Ramachandran v. K.P. Noordeen (AIR 1988 Kerala 141) went into the question whether an allegation of some departmental work in the Constituency by a returned candidate on the eve of the election itself would attract S.123(2) of the Act. It was held that anything done by a candidate before his candidature for gaining popularity in the constituency with an eye on the ultimate candidature will not come within the scope of S.123(2). There should be an element of bargaining in the Act alleged on the part of the successful candidate. That was a case where a Minister allegedly redressed the grievances of the people of his constituency. There should be an element of bargaining in the Act alleged on the part of the successful candidate. That was a case where a Minister allegedly redressed the grievances of the people of his constituency. It was held that the redressal of such grievances of the people or rendering them any help on the eve of election is not a corrupt practice unless it is alleged and proved that he obtained promises from the voters in return as a condition for his help. 13. It was also held in the said decision that the allegations and evidence must show clearly that there was a promise or gift directly or indirectly made to an elector by the candidate to vote or refrain from voting at an election. In order to constitute the corrupt practice the influence or threat must be calculated to interfere with the free exercise of electoral right and leave no choice to the electors in the matter. Some developmental works alone in the constituency on the eve of election, it was held, will not attract S.123(2) without other allegations. On approaching the allegation in the petition from the above perspective, I am of the view that there cannot be any finding that there was corrupt practice on the part of the 1st respondent even accepting all the averments in the petition as proved. 14. The question thus arises whether, in the circumstances of this case, there is scope for summoning the respondents and for conducting a full-fledged trial? S.86 of the Act empowers the court to dismiss an election petition which does not comply with the provisions of S.81, S.82 or S.117 only. The question still arises whether in the absence of sufficient averments justifying a cause of action, even prima facie on the part of the petitioner, the court would be justified in proceeding with the matter and in ordering summons to the respondents. This question is covered by the decision in Azhar Hussain v. Rajiv Gandhi (1986 (2) SCR 782). There also the contention raised was that an election petition could not be dismissed by reason of want of material facts in so far as S.86 does not contemplate rejection of a petition in such circumstances. This question is covered by the decision in Azhar Hussain v. Rajiv Gandhi (1986 (2) SCR 782). There also the contention raised was that an election petition could not be dismissed by reason of want of material facts in so far as S.86 does not contemplate rejection of a petition in such circumstances. It was held that in view of S.87 of the Act which provides that every election petition should be tried by the High Court as nearly as may be in accordance with the procedure applicable under the CPC to the trial of the suits, a petition which does not furnish cause of action can be dismissed. It was specifically held that appropriate orders in exercise of powers under the CPC can be passed if the mandatory requirements enjoined by S.83 of the Act to incorporate the material facts in the election petition are not complied with. In the context of a charge of corrupt practice material facts would mean the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner. An election petition therefore can be and must be dismissed if it suffers from any such vice. 15. The question whether an election petition can summarily be rejected in case material facts are not contained in the petition was specifically gone into in para 12 of the aforesaid judgment. There also a contention had been raised by the petitioner that the court was bound to proceed with the trial, record the evidence and it is only after the trial of the election petition is concluded that the powers under the CPC for dealing appropriately with the defective petition which does not disclose any cause of action should be exercised. The Apex Court rejected the said contention holding that the whole purpose of conferment of such powers is 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 exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation the court readily exercises the power to reject a plaint if it does not disclose any cause of action. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation the court readily exercises the power to reject a plaint if it does not disclose any cause of action. It was held that the courts in exercise of the powers under the CPC can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the court is satisfied that the action could terminate in view of the merits of the preliminary point of objection. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. Such being the position in regard to matters pertaining to ordinary civil litigation there is greater reason for taking the same view in regard to matters pertaining to elections. It was held that the court has the power to act at the threshold and if it is satisfied that it is a fit case for the exercise of such power, it has to be exercised even at the threshold. The ultimate finding of the Apex Court was that the power to dismiss or reject an election petition or pass appropriate orders can be exercised even in limine. 16. The question now arises whether, in view of the above decision, even assuming that all the facts averred in the petition are proved, the relief prayed for in the petition can be allowed. 16. The question now arises whether, in view of the above decision, even assuming that all the facts averred in the petition are proved, the relief prayed for in the petition can be allowed. The sum and substance of the petitioner's contention is that after the giving of nomination paper and on finding that for noncompletion of a scheme which had been introduced with the efforts of the 1st respondent even after more than a decade of its commencement, the voters decided to boycott the election and in order to obviate the possible boycott the 1st respondent exerted personal influence on the authorities and ensured that the works for completion of the road were handed over to another division of the PV%TD so that it could be resumed with immediate effect and that this was done with the objective of obviating the boycott. 17. Admittedly, the scheme for construction of the road itself was the brain child of the 1st respondent and he has been continuously elected from the Constituency for several years. It was expected of him, therefore, to ensure that the scheme was completed. Efforts to complete the work cannot be said to be mala fide or an item of corrupt practice. It may be that but for certain steps taken by the 1st respondent, the completion of the work would have been delayed further and it might be that the efforts of the 1st respondent on finding that there was possibility of boycott of the election by the voters paved the way for resumption of work. Even so, according to me, this may not amount to a'corrupt practice' as envisaged in S.123 of the Representation of the People Act, 1951 (for short, 'the Act'). 18. On a careful analysis of all relevant aspects, my conclusion is that the allegations in the petition, even if it is proved to the hilt, cannot justify a finding that there was 'any undue influence' exerted by the 1st respondent when he ensured that the work in question which had been started with his initiative years back and was dormant, was speeded up when faced with a threat of boycott by the voters on the issue. It follows that there was no corrupt practice played by the 1st respondent. It follows that there was no corrupt practice played by the 1st respondent. Since the averments in the petition do not show any possibility of the relief sought for in the petition being granted and applying the decision in Azhar Hussain v. Rajiv Gandhi (1986 (2) SCR 782) mentioned supra, I am of the view that the petition does not deserve to be proceeded with any further. It is accordingly rejected.