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2016 DIGILAW 1065 (KER)

Mani C. Kappan v. K. M. Mani

2016-12-05

K.RAMAKRISHNAN

body2016
JUDGMENT : K. Ramakrishnan, J. 1. The petition was filed by the petitioner who is a defeated candidate in the election conducted to Kerala Legislate Assembly on 16.05.2016 challenging election of 1st respondent from Pala constituency. It is alleged in the petition that petitioner contested the election from No.3 Pala Assembly Constituency to Kerala Legislative Assembly in the general election held on 16.05.2016. There were 8 candidates contested in the election who were shown as the respondents herein. 1st respondent herein was declared elected from the constituency with a majority of 4,703 votes. The 1st respondent had contested in the election as a United Democratic Front Candidate while the petitioner contested as a candidate of left democratic front. 1st respondent had failed to comply with the provisions regarding the submission of nomination paper prescribed under Representation of Peoples Act 1951 and orders made therein by the election commission. The nomination of 1st respondent was improperly accepted by the returning officer as the nomination was incomplete and defective of substantial nature as provided under Section 36 of the Representation of Peoples Act. As per Section 32 of Representation of Peoples Act any person may be nominated as a candidate for the election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the constitution and the Act. The persons contesting the elections has to present a nomination paper along with the required documents to make that nomination as valid. It must be presented in Form II B as per Rule 4 of the conduct of election rules, an additional affidavit to be filed in Form 26 as per Rule 4A of the said Rules. On presentation of the nomination paper, the returning officer has to satisfy himself that the nomination is proper and inconformity with the provisions of the Representation of Peoples Act and Rules. As per Section 33 A of the Act, a candidate shall apart from any information which is required to furnish under the Act and Rules made under his nomination paper delivered under Sub Section (1) of Section 33, also furnish information as whether his involvement in a criminal case, conviction etc. As per Section 33 A of the Act, a candidate shall apart from any information which is required to furnish under the Act and Rules made under his nomination paper delivered under Sub Section (1) of Section 33, also furnish information as whether his involvement in a criminal case, conviction etc. As per the directions of the Delhi High Court in W.P. (C)No. 4912 of 1998 Kishak Bharath v. Union of India and Others, the election commission had issued Annexure A order dated 03.2.2016 necessitating the candidate to submit no demand certificate from agencies providing electricity, water and telephone along with a nomination paper and c also to file an additional affidavit in the format attached as Annexure to the said order. As per the order issued by the Election Commission, certificate must show that there is no demand issued from the above agencies and no amount is due for the last 10 years from that person for occupying the official Government accommodation provided. It is also provided therein that failure to provide a certificate as provided therein will result in rejection of nomination paper as provided under Section 36 of the Act. 1st respondent submitted Annexure B nomination paper along with affidavit and documents, which did contain the necessary no demand certificate from the authorities which are supplying electricity, water and telephone as provided under the circular. The 1st respondent was in occupation of official residence of Minister, Prasanth Vazhuthakkad, Thiruvananthapuram and also at M.L.A. Quarters. Electricity, water and telephone were provided by the respective departments, but he had not produced the necessary documents. So the acceptance of nomination of 1st respondent is not valid and the returning officer ought to have rejected the same and it was improperly accepted, which has materially affected the result of the j election. He had also contended that 1st respondent was contesting from Pala Constituency for the last 50 years and he had acquaintance with all the people in the locality and his presence alone will be sufficient for getting more votes. The votes were obtained by 1st respondent on account of his personal acquaintance with the voters in the constituency irrespective of the fact that he is a leader of a known political party which is a part of United Democrat Front. The votes were obtained by 1st respondent on account of his personal acquaintance with the voters in the constituency irrespective of the fact that he is a leader of a known political party which is a part of United Democrat Front. In spite of the fact that there were allegations of corruption against him, he succeeded in the election only on account of his personal acquaintance with the people in the locality. Another candidate from Thripunithura who was a minister against whom corruption charges were made though contested in the election lost the election from that constituency. Had the nomination paper of the 1st respondent been rejected, the votes polled to him would have been diverted and most of the votes would have been polled to the petitioner and thereby he would have been elected from the constituency in the absence of the 1st respondent. The 2nd respondent had acquired only 1/3 votes secured by the petitioner. If the 1st respondent was not there, he would have won the election. So he filed an election petition for declaring the election of the 1st respondent as not valid for improper acceptance of his nomination paper and also declare him as elected candidate from that constituency. Hence this petition. 2.1st respondent filed written statement contending as follows:- The application is not maintainable. He admitted that he contested the election from Pala Constituency along with the petitioner and others and he was declared elected from that constituency with big majority. The allegation that his nomination was improperly accepted is not correct. It was filed after complying with all the necessary requirements and there was no defect in the nomination as provided under the Act and he had submitted necessary documents required to be accompanied as well. There was no due from him for accommodations provided in the legislature hostel, Thiruvananthapuram and also in his official residence. He had obtained no dues certificate from Tourism Department for accommodation provided as minister of the State and for the occupation of Legislative house Palayam, it was issued from Secretariat of Kerala Legislature. As per Section 5 of the Payment of Salaries and Allowance Act 14 of 1951 as amended from time to time, governs the payment of salaries and allowances of Ministers, Speakers, Deputy Speaker, Leader of Opposition, Chief Whip and Members of Legislative Assembly. As per Section 5 of the Payment of Salaries and Allowance Act 14 of 1951 as amended from time to time, governs the payment of salaries and allowances of Ministers, Speakers, Deputy Speaker, Leader of Opposition, Chief Whip and Members of Legislative Assembly. As the Minister and others are entitled to get a fully furnished residence without payment of rent in the city of Thiruvananthapuram through out the term of office and for a period of 15 days immediately thereafter, no charge shall fall on the minister personally in respect of the maintenance of the residence in lieu of use of such furnished residence. As a Miniser he is entitled to get accommodation free of rent and maintenance. Electricity charges, water charges and telephone charges and all other taxes in respect of those accommodation during his tenure is a liability of the Government and it will be paid by the Tourism Department. Since no amount was due from the respondent for the accommodation of Prasanth Nanthancode and also Legislative Home at Palayam, the Tourism Department as well as Secretariat of Kerala Legislature issued certificate of no dues outstanding against him. He had also submitted that certificate along with the nomination which is sufficient as provided under the orders issued by the Election commission as mentioned in the petition. So the acceptance of nomination is proper and it is not defective and the allegation that it was improperly accepted is not correct. The allegation that if his nomination paper was rejected, the petitioner would have been elected from the constituency is not correct. It cannot be said that the votes polled in favour of the respondent would have been polled in favour of the petitioner. So he is not entitled to get the declaration that the election of the respondent is not valid and he is declared to be elected from that constituency etc. There is no allegation in the petition that any amount was due to electricity board, water authority or B.S.N.L. from the 1st respondent personally which he had not paid. There is no required pleadings as required under Section 101 of the Act and as such, the petitioner is not entitled to get the relief claimed. So he prayed for dismissal of the petition. 3. Others remained absent. 4. On the basis of the pleadings following issues were framed by this Court:- (a). Whether the petition is maintainable? There is no required pleadings as required under Section 101 of the Act and as such, the petitioner is not entitled to get the relief claimed. So he prayed for dismissal of the petition. 3. Others remained absent. 4. On the basis of the pleadings following issues were framed by this Court:- (a). Whether the petition is maintainable? (b). Whether there is any cause of action made out for maintaining the petition? (c). Whether there is any improper acceptance of nomination of the 1st respondent as alleged? (d). Whether non production of individual non liability certificate from electricity board, B.S.N.L., water authority in respect of arrears due to them along with the affidavit is fatal and entitled in requiring rejection of nomination paper of the 1st respondent filed? (e). Whether the election of the 1st respondent is declared null and void for the reasons stated in the petition? (f). Whether the petitioner is entitled to get declaration that he is to be declared elected? (g). Relief and Cost. 5. The respondent filed I.A.8 of 2016 to hear the question of maintainability and also non disclosure of cause of action to maintain the petition as a preliminary issue under Order 7, Rule 11 of Code of Civil Procedure read with Section 87 of Representation of Peoples Act 1951, accordingly it was heard as preliminary issued. 6. Heard Shri. Deepu Thankan, counsel appearing for the election petitioner and Shri. S. Sreekumar, Senior counsel appearing for the 1st respondent. 7. The counsel for the petitioner submitted that as per Annexure A Orders issued by the Chief Election Commission, every candidate who is occupying a Government accommodation has to provide a no demand certificate regarding payment of arrears of water, electricity and telephone charges from the agencies supplying the same viz., water authority, electricity board and B.S.N.L. for the last 10 years and also file an additional affidavit stating that no such amounts are due. But in this case, the petitioner has not produced any such certificate along with nomination paper. But he had produced only the certificate issued from the tourism department and secretariat legislative assembly which is not sufficient as such it does not confirm with the provisions of presentation of proper nomination and the same ought to have been rejected. If that has rejected, then the petitioner would have been declared elected from the Constituency. 8. But he had produced only the certificate issued from the tourism department and secretariat legislative assembly which is not sufficient as such it does not confirm with the provisions of presentation of proper nomination and the same ought to have been rejected. If that has rejected, then the petitioner would have been declared elected from the Constituency. 8. On the other hand the senior counsel appearing for the 1st respondent submitted that there is no allegation in the petition that amounts were due from the 1st respondent towards water, electricity or telephone charges of the Government accommodation occupied by him which he had not paid. Further as per the Rules governing the persons elected, they are entitled to get official accommodation free of rent and maintaience and everything will be borne by the Government and there is no personal liability for them and as such there is no question of individual certificate being produced by the 1st respondent. The necessary certificates were properly produced and that is in conformity of the same. Further, there is nothing mentioned in the petition that this has materially affected and how far it is materially affected as well. He had relied on the decision reported in Vashist Narain Sharma v. Dec Chandra and Others, (1955) 1 SCR 509 : 1954 ICO 88 and Chhedi Ram v Jhilmit Ram and Others, (1984) 2SCC 281 1983 ICO 2 in support of his case. 9. Issues 1 to 5. Since this issues are interconnected they are considered together. It is an admitted fact that the petitioner is the defeated candidate from Pala Constituency and the election held to Kerala Legislative Assembly on 16.05.2016 and 1st respondent was the returned candidate from that constituency. There is no dispute regarding the fact that 1st respondent obtained 4703 votes more than the petitioner and he was elected from that Constituency. 10. The main allegation in the petition was that the first respondent was occupying the Government accommodation as a Minister and Member of the Legislative Assembly and he had not submitted the necessary no demand certificate regarding the charges payable towards electricity, water and telephone charges from the concerned agencies like Electricity Board, Kerala Water Authority and B.S.N.L along with the nomination as provided under the order issued by the Election Commission in this regard to be accompanied along with the nomination to make it a valid nomination. Since that was not complied with, there is no valid nomination and the acceptance of nomination is improper and on that ground the election is liable to be set aside. He had also contended that in the absence of the first respondent in the array of candidates, he would have been elected as the wasted votes that had been polled in favour of the first respondent would have been polled in his favour and thereby he would have been elected from the constituency. There is no allegation that there were arrears recoverable from the first respondent towards electricity charges, water charges and telephone charges while he was occupying the Government accommodation while holding the post of Minister and Member of the Legislative Assembly. It is also an admitted fact that the first respondent had not produced the respective certificates from the respective agencies, but he had produced only documents which were issued by the Secretary of the Secretariat or Kerala Legislature and Additional Director, Department of Tourism showing that there was no dues to the concerned department towards rent and other charges including electricity, water and telephone for the last 10 years. 11. The petitioner relied on Annexure-A order No.509/11/2004-JS1 dated 3.2.2016 issued by the Election Commission of India for this purpose, which reads as follows: "xxx xxx xxx Now, therefore, in pursuance of the above mentioned direction of the Hon'ble Delhi High Court, the Commission hereby directs that at every election to either House of Parliament and to the State Legislature, every candidate at the time of filing nomination paper, shall also file an additional affidavit in the format attached as Annexure to this order along with the 'No Demand Certificate' from the agencies providing electricity, water and telephone with also rent, in case he had been in occupation of any Govt, accommodation during the last 10 years. This affidavit would be in addition to the affidavit required to be filed in form-26 and shall be got attested by an Oath Commissioner, or Notary Public, or Magistrate of the First Class. The outer limit for filing this affidavit would be 3.00 P.M on the last date of filing nomination paper. Failure to fie the affidavit along with the 'No Demand Certificates' would be treated as a defect of substantial nature for the purposes of Section - 36 of the Representation of the People Act, 1951." 12. The outer limit for filing this affidavit would be 3.00 P.M on the last date of filing nomination paper. Failure to fie the affidavit along with the 'No Demand Certificates' would be treated as a defect of substantial nature for the purposes of Section - 36 of the Representation of the People Act, 1951." 12. It is seen from the order that every candidate contesting for the election either to the House of Parliament or to the State of Legislative at the time of filing nomination shall also file an additional affidavit in the format attached as Annexure to this order along with no demand certificate from the agencies providing electricity, water, telephone with also rent in case he had been in occupation of any Government accommodation during the last 10 years. The affidavit should be in addition to the affidavit required to be filed in form 26 and shall be got attested by an oath commissioner or Notary Public or Magistrate of First Class. The outer limit of filing this affidavit would be on the last date of filing nomination paper. Failure to file affidavit along with no demand certificate would be treated as a defect of substantial nature for the purpose of section 36 of the Representation of the People Act, 1951. Section 33 of the Representation of the People Act deals with presentation of nomination paper and requirements for a valid nomination. 13. Section 36 of the Representation of the People Act deals with scrutiny of nomination which reads as follows: [Section : 36] Scrutiny of nomination:- (1) On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but no other person, may attend at such time and place as the Returning Officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33. (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, Part II of this Act and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963) or (b) that there has been a failure to comply with any of the provisions of section 33 or section 34; or (c) that the signature of the candidate or the proposer on the nomination paper is not genuine. (3) Nothing contained in clause (b) or clause (c)] of sub-section (2) shall be deemed to authorise the [rejection] of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed. (4) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. (5) The Returning Officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control: Provided that in case [an objection is raised by the Returning Officer or is made by any other person] the candidate may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned. (6) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. (6) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. [(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in Section 16 of the Representation of the People Act, 1950]. [(8) Immediately after all the nomination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.] 14. If the nomination paper is defective, then the Returning Officer is entitled to reject the nomination and the returning officer shall not reject any nomination on the ground of defect which is not of substantial character. The circular mentioned above has been issued in view of the directions given by the Delhi High Court in Krishik Bharath v. Union of India & others (W.P.(C).No.4912/1998) when it was found that there were unauthorized occupation of Government accommodation provided to the Ministers, members of Parliament and State Legislative Assembly even after their period is over and they are occupying that accommodation for long period even without payment of rent, arrears of electricity, water charges and telephone charges. In order to avoid unauthorized occupation by such persons, the persons who had occupied the building for a period of 10 years prior to the filing of the nomination have to provide a no demand certificate from the concerned agency that no amount is due from him towards water, electricity, telephone and rent and it must be accompanied by an affidavit that there is no due from him. But in this case, there is no case for the petitioner that the first respondent had occupied the Government accommodation other than the period during which he was holding such office or position. 15. But in this case, there is no case for the petitioner that the first respondent had occupied the Government accommodation other than the period during which he was holding such office or position. 15. As regards persons occupying the Government accommodation holding the above position is governed by the provisions of Travancore Cochin Payment of Salary and Allowance Act, 14 of 1951. Section 2(a) of the said Act defines residence includes staff quarters and other buildings appurtenant thereto and Section 2(b) defines maintenance as in relation to residence includes payment of local rates, taxes and provisions of electricity and water. Section 5 of the Act dealing with residence of Minister and Speaker which says that every Minister and Speaker of the Legislative Assembly shall be entitled without payment of rent to use of a fully furnished residence in the city of Trivandrum through out their term of office and a period of 15 days immediately thereafter and no charges shall fall upon the Minister or speaker personally in respect of maintenance of the residence or in lieu of the use of such furnished residence and its maintenance to a house rent allowance of Rs. 150/- per mensem. So it is clear from the provision that there is no personal liability for the Minister to pay any electricity, rent, water or telephone charges directly and it will be paid by the government. When there is no liability to pay the amount directly and it will have to be paid by the department directly, who were in charge of those accommodation, then they are the competent persons to issue no demand certificate to such persons. Accordingly the Secretariat of Kerala Legislature has issued a no demand certificate to the first respondent stating that there is no dues outstanding against the first respondent for the official accommodation given for Member of Legislative Assembly in Thiruvananthapuram on account of rent and other charges including electricity, water and telephone for the last 10 years and the Tourism department had issued no due certificate certifying that Sri. K.M. Mani MLA, Pala has no due to the department on account of electricity, water, telephone charges and rent for accommodation given to him in the capacity as Minister as on this date. The certificate was dated 15.4.2016. K.M. Mani MLA, Pala has no due to the department on account of electricity, water, telephone charges and rent for accommodation given to him in the capacity as Minister as on this date. The certificate was dated 15.4.2016. So it is clear from the above certificates that there is no amount due towards the above charges from the first respondent and he had also filed an affidavit as provided in the circular in the format provided therein and thereby, he had complied with the necessary formalities to be complied with and documents to be provided along with the nomination paper as provided under the Representation of the People Act. There is substantial compliance of the requirements especially in a case where he had no direct liability to pay the amount as during the tenure of his office as MLA or Minister, they will have to be paid by the concerned department and there is no case for the petitioner that he had overstayed than the period mentioned above and he has got a personal liability to pay any such amount to the concerned department. 16. Further it is clear from section 36(4) of the Representation of the People Act that if the defect in the nomination is not substantial in nature, it cannot be rejected by the returning officer. So in this case it cannot be said that the defect noted by the petitioner in the election petition is a substantial defect which requires rejection of nomination paper of the first respondent and as such, it cannot be said that the nomination of the first respondent was improperly accepted by the returning officer and it ought to have been rejected by the returning officer as contended by the petitioner in the election petition. So when there is substantial compliance of the Rules, which do not go to the root of the matter, which is sufficient for the purpose of validating the nomination enabling the returning officer to accept the nomination, then it cannot be said that acceptance of the nomination is improper and on that ground the election of the first respondent is liable to be set aside. 17. 17. In the decision reported in Rajendra Kumar Meshram v. Vanshmani Prasad Verma and another, 2016 (7) Supreme 143 , it has been held that election may be declared void if mandatory provision of section 33(5) is not complied with in filing nomination paper. 18. However under section 100(l)(d), election may be declared void on the ground of improper acceptance of a nomination if such improper acceptance of nomination has materially affected the result of the election. 19. In the decision reported in Chhedi Ram v. Jhilmit Ram and Others, 1984 (2) SCC 281 : 1983 ICO 2, it has been held that: "The burden of establishing that the result of the election has been materially affected as a result of the improper acceptance of a nomination is on the person impeaching the election. If having regard to the facts and circumstances of a case, the reasonable probability is all one way, the burden may be said to have been discharged and a court must not lay down an impossible standard of proof and hold a fact as not proved. The question must depend in the facts, circumstances and reasonable probabilities of the case, particularly on the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, as compared with the number of votes secured by the candidate whose nomination was improperly accepted and the proportion which the number of wasted votes (the votes secured by the candidate whose nomination was improperly accepted) bears to the number of votes secured by the successful candidate. If the number of votes secured by the successful candidate and is the candidate securing he next highest number of votes and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, the reasonable probability is that the result of the election has been materially affected and one may venture to hold the fact as proved." 20. The same view has been reiterated in the decision reported in Vashist Narain Sharma v. Dev Chandra and others, 1955 (1) SCR 509 : 1954 ICO 88. The same view has been reiterated in the decision reported in Vashist Narain Sharma v. Dev Chandra and others, 1955 (1) SCR 509 : 1954 ICO 88. So it is clear from the above dictums that even if it is proved that there is improper acceptance of nomination paper unless it is pleaded and proved by the petitioner that it has materially affected the result of the election and in the absence of the first respondent the wastage votes given to him would have been polled in his favour thereby he would have been elected. But it has already been observed by this court while appreciating the documents produced and the relevant provisions relating to the Ministers and Member of the Legislative Assembly occupying the Government accommodation that there is no necessity to produce independent certificates from the concerned agencies supplying electricity, water, telephone and rent when there is no personal liability for the person to pay the same and it has been paid by the department while he was in office, then he need produce certificate from the concerned departments who are in charge of accommodation and that is substantial compliance of producing no due certificate as required under the order of Election Commission to make the nomination submitted by the first respondent valid and thereby it cannot be said that the nomination of the first respondent was improperly accepted. So on that ground the election is not liable to be set aside and the allegations are not sufficient to hold that a valid cause of action has been made out by the petitioner for proceeding with the election petition making it maintainable and require evidence to be adduced to prove the allegation in the petition. So the petition is bad for want of necessary cause of action to proceed against the first respondent challenging the election of the first respondent to the Kerala Legislative Assembly and the petition is liable to be rejected for the above reasons. The issues are answered in favour of the first respondent and against the petitioner. 21. Issue No.6: In view of the above findings, this issue does not arise for consideration as this will arise only if it is found that the acceptance of nomination is not proper and then only the question as to whether it has materially affected or not has to be considered by this court. 21. Issue No.6: In view of the above findings, this issue does not arise for consideration as this will arise only if it is found that the acceptance of nomination is not proper and then only the question as to whether it has materially affected or not has to be considered by this court. The point is answered accordingly. 22. Issue No.7:- The petitioner is not entitled to get the relief claimed and so the petition is liable to be dismissed. 23. In the result, the petition is dismissed. This court do not find any reason to deny cost to the first respondent. So the petition is dismissed with cost to the first respondent. Registry is directed to communicate a copy of this judgment to the Election Commission or other authority required to be informed as per the Representation of People Act and conduct Election Rules immediately.