Research › Search › Judgment

Kerala High Court · body

2012 DIGILAW 889 (KER)

Tony Oliver v. Patric Roy

2012-09-25

V.CHITAMBARESH

body2012
JUDGMENT 1. I heard Mr. K. Ramakumar, Senior Advocate on behalf of the returned candidate and Mr. G.P. Shinod, Advocate on behalf of the defeated candidate in the Civil Revision Petitions filed under Section 115 of the Code of Civil Procedure, 1908 challenging the concurrent decisions of the courts below. 2. The revision petitioner in the three Civil Revision Petitions is the returned candidate whose election was called in question by the defeated candidate and two electors in separate election petitions. The election was sought to be declared void under sub sections (ca) and (d)(i) of Section 178 (1) of the Kerala Municipality Act, 1994 (the Act' for short). The relevant provisions thereof can be profitably extracted hereunder: "178. Grounds for declaring election to be void:-(1) Subject to the provisions of subsection (2) if the court is of opinion-(a) xxxxxxxx (b) xxxxxxxx (c) xxxxxxxxx (ca) that the details furnished by the elected candidate under sub-section (1A) of section 108 were fake; or(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-(i) by the improper acceptance of any nomination; or (ii) xxxxxxx (iii) xxxxxxx (iv) xxxxxxx the court shall declare that the election of the returned candidate to be void. The courts below concurrently held that the election petitioners have not established the ground for declaring the election of the returned candidate void under Section 178 (l) (d) (i) of the Act. It was found that there is paucity of pleadings and dearth of evidence to hold that the result of the election in so far as it concerned the returned candidate was materially affected by the improper acceptance of his nomination. The well rested finding so entered by the election court was not challenged in appeal or revision by either the defeated candidate or the electors and has hence become final. The short question that survives for consideration is as to whether the election of the returned candidate deserve to be declared void under Section 178 (l)(ca) of the Act as held by the courts below. 3. The short question that survives for consideration is as to whether the election of the returned candidate deserve to be declared void under Section 178 (l)(ca) of the Act as held by the courts below. 3. Section 108 (1A) of the Act reads as under: "Every candidate submitting nomination under sub-section (1) shall not be deemed to be qualified to be elected to fill that post unless he submits, along with such nomination, the details regarding his educational qualification, criminal cases in which he is involved at the time of submission of nomination, property owned by him and other members of his family, liabilities including arrears due from him to any Public Sector Undertaking or Government or Local Self Government Institutions and whether disqualified for defection under the Kerala Local Authorities (Prohibition of Defection) Act, 1999 in the form and manner as may be prescribed".(emphasis supplied). The candidate submitting his nomination is therefore required to furnish along with the same the following details: (i) His educational qualification.(ii) Criminal cases in which he is involved at the time of submission of nomination.(iii) Property owned by him and other members of his family. (iv) Liabilities including arrears due from him to any Public Sector Undertaking or Government or Local Self Government Institutions.(v) Whether disqualified for defection under the Kerala Local Authorities (Prohibition of Defection) Act 1999. The form and manner in which the details are required to be furnished under Section 108 (1A) of the Act is prescribed in Rule 6 (2a) of the Kerala Municipality (Conduct of Election) Rules, 1995 (the 'Rules' for short). The same is extracted hereunder: "Every candidate shall submit before the Returning Officer, the details in Form No. 2A along with the nomination paper". It is in Form 2A specified in Rule 6 (2) (a) of the Rules has the details to be furnished by the candidate along with his nomination paper for its proper acceptance before the Returning Officer. True it is that Clause 1(a) in Form 2A speaks of criminal cases pending trial before any court and Clause 1(b) therein speaks of criminal cases in which the candidate had been punished by any court. The filling up of particulars in clause 1 (a) of Form 2A alone would be decisive and relevant for the purpose of deciphering the details required to be furnished under Section 108 (1A) of the Act. 4. The filling up of particulars in clause 1 (a) of Form 2A alone would be decisive and relevant for the purpose of deciphering the details required to be furnished under Section 108 (1A) of the Act. 4. The election petitioners asserted that the returned candidate was convicted and sentenced to pay fine in the following cases by the court of the Judicial First Class Magistrate-III, Thiruvananthapuram. (i) S.T. No. 1666/2004 for offence alleged under Sections 143, 147, 149 and 448 IPC.(ii) C.C. 302/2003 for offence alleged under Sections 143, 147, 149, 341 and 447 IPC. The election petitioners contended that the wilful failure of the returned candidate to furnish the true and complete particulars in Form 2A made the details 'fake' under Section 108 (1A) which in turn attracted Section 178 (1)(a) of the Act. But these are cases which were already disposed of by the court and admittedly not pending at the time of submission of his nomination by the returned candidate. Section 108 (1A) of the Act mentions only criminal cases in which the candidate is involved at the time of submission of nomination and not those which ended in conviction or acquittal. The statute is categoric about the details of criminal cases in which the candidate 'is involved at the time of submission of nomination’ and not about criminal cases in which he 'was’ involved on an anterior date. No doubt a candidate is liable to be disqualified under Section 90 (1)(b)(i) of the Act if he had been sentenced by a court or a Tribunal with imprisonment for a period of not less than three months for an offence involving moral turpitude. The returned candidate in the instant case had only been sentenced to pay fine in the criminal cases referred to above and had not been sentenced for an offence involving moral turpitude. Clause 1(b) in Form 2A requiring the candidate to furnish details about past cases cannot at any rate have any bearing on Section 108 (1A) of the Act on which ground alone the challenge is pursued. 5. I am conscious that Sections 108 (1A) and 178 (ca) as well as Rule 6 (2a) and Form 2A were inserted by Act 37 of 2005 with effect from 24.08.2005 to be in tune with the observations in Union of India Vs. Association of Democratic Reforms, (2002) 5 SCC 294). 5. I am conscious that Sections 108 (1A) and 178 (ca) as well as Rule 6 (2a) and Form 2A were inserted by Act 37 of 2005 with effect from 24.08.2005 to be in tune with the observations in Union of India Vs. Association of Democratic Reforms, (2002) 5 SCC 294). The laudable object is to educate the electorate about the history of the candidate in order to decide in whose favour they should exercise their discretion to cast votes conducive for a healthy democracy. The failure to furnish the details in Clause 1 (b) of Form 2A may render the election void under Section 178 (1)(d)(i) or Section 178 (1)(d)(iv) and certainly not under Section 178 (1)(ca) of the Act. I have already stated that the ground urged to declare the election of the returned candidate void under Section 178 (1)(d)(i) of the Act was concurrently found against by the courts below. There was also no challenge to the election of the returned candidate under Section 178 (1) (d)(iv) of the Act alleging non-compliance with the provisions of the Act or any Rules or Orders made thereunder. I should remind myself that the election petitioners sought to declare the election of the returned candidate void under Section 178 (1)(ca) only for alleged failure to furnish the details as per Section 108 (1A) of the Act. The returned candidate had well furnished the details of the pending cases in Clause 1 (a) of Form 2A and only the details of the criminal cases already ended were not divulged in Clause 1 (b) of Form 2A. 6. The Supreme Court in BanwariDass Vs. Sumer Chand, (1974) 4 SCC 817 held as follows: "20. This Court has repeatedly held that 'an election contest is not an action at law or a suit in equity but a purely statutory proceeding unknown to common law and the court possesses no common law powers'. Statutory provisions of election law are to be strictly construed and its requirement strictly observed. In P.MalaichamiVs. M.Andi Ambalam, (1973) 2 SCC 170 this Court speaking through Alagiriswamy. J. again pointed out (at p. 181, para 18):"courts in general are averse to allow justice to be defeated on a mere technicality. But in deciding an election petition, the High Court is merely a Tribunal deciding an election dispute. In P.MalaichamiVs. M.Andi Ambalam, (1973) 2 SCC 170 this Court speaking through Alagiriswamy. J. again pointed out (at p. 181, para 18):"courts in general are averse to allow justice to be defeated on a mere technicality. But in deciding an election petition, the High Court is merely a Tribunal deciding an election dispute. Its powers are wholly the creature of the statute under which it is conferred the power to hear election petitions"21. It must be remembered -to use the oft quoted words of Grove. J., in Taunton case (20' M&H, p. 74):"That although the object of the statute by which the election tribunals were created was to prevent corrupt practices, still the tribunal is a judicial, and not an inquisitorial one, it is a court to hear and determine according to law, and not a commission armed with powers to enquire into and suppress corruption ". The Supreme Court again in F.A. Sapa Vs. Singora, (1991) 3 SCC 375 held as follows:- "It is fairly well settled that our election law being statutory in character must be strictly complied with since an election petition is not guided by ever changing common law principles of justice and notions of equity. Being statutory in character it is essential that it must conform to the requirements of our election law." 7. A strict interpretation of Section 108(1A) of the Act would lead to the irresistible conclusion that the candidate is required to furnish only the details of criminal cases in which he is involved at the time of submission of his nomination. Section 108(1A) of the Act does not cast an obligation on the candidate to furnish the details of the criminal cases in which he was involved at a time prior to the submission of his nomination. A similar provision can be found in the Kerala Panchayat Raj Act 1994 where an election could be set aside under Section 102(1) (ca) for failure to furnish the details under Section 52(1A) of the said Act. Section 52 (1A) of the said Act is in pari materia with Section 108 (1A) of the Act and the same has been interpreted in GopalakrishnanVs. Section 52 (1A) of the said Act is in pari materia with Section 108 (1A) of the Act and the same has been interpreted in GopalakrishnanVs. Sarasi, 2009 (2) KLT 882 as follows:- "If the appellant was an accused in a criminal case pending before any court and he was aware of that case and the pendency of that case was suppressed in Form 2A, it would definitely amount to furnishing details which are fake which is a ground for setting aside an election under Section 102 (1) (ca) of the Act. But if there is only an omission of inconsequential details though it could be said that the details furnished are not accurate or complete it cannot be said that the details so furnished are false or fake."(emphasis supplied) Neither the defeated candidate nor the electors urged that the pendency of any criminal case had been suppressed by the returned candidate in Form 2A in which the details were required to be furnished under Section 108(1A) of the Act. The omission to mention the two criminal cases in which the returned candidate was convicted and sentenced to pay fine much prior to the submission of nomination is irrelevant. Such omission does not render the election of the returned candidate void under Section 178 (1)(ca) on the ground that the details furnished under Section 108 (1A) were 'fake'. The omission would make the election vulnerable to challenge under Section 178(1)(d)(i) or Section 178(1)(d)(iv) where as the election petition is pursued under Section 178(1)(ca) of the Act only. The courts below in allowing the election petitions have obviously acted in the exercise of its jurisdiction illegally and with material irregularity warranting interference. 8. The impugned orders are set aside and E.P.Nos. 11/2010, 15/2010 and 19/2010 on the file of the court of the II Additional Munsiff of Thiruvananthapuram are dismissed. The Civil Revision Petitions are allowed. No costs.